REGISTRATION RIGHTS AGREEMENT Dated as of November 30, 2006 By SATÉLITES MEXICANOS, S.A. de C.V. for the benefit of CERTAIN HOLDERS OF ITS FIRST PRIORITY SENIOR SECURED NOTES DUE 2011
Dated as of November 30, 2006
By
SATÉLITES MEXICANOS, S.A. de C.V.
for the benefit of
CERTAIN HOLDERS OF
ITS FIRST PRIORITY SENIOR SECURED NOTES DUE 2011
This Registration Rights Agreement (this “Agreement”) is dated as of November 30, 2006, by
SATÉLITES MEXICANOS, S.A. de C.V., a corporation (sociedad anónima) duly organized and existing
under the laws of the United Mexican States (the “Company”), for the benefit of each of the Holders
of the Registrable Securities (as such terms are defined below).
RECITALS
WHEREAS, this Agreement is entered into in connection with the Company’s First Priority Senior
Secured Notes due 2011 (the “First Priority Notes”), issued or to be issued pursuant to the terms
of the First Priority Senior Secured Note Indenture (as defined below);
NOW, THEREFORE, in consideration of the mutual promises, covenants, agreements and conditions set
forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and intending to be legally bound, the parties agree as follows:
ARTICLE
I.
Section 1.
Definitions. For purposes of this Agreement:
“Bankruptcy Code” means title 11, United States Code, as amended from time to time.
“Company Expenses” means (i) the fees, charges and disbursements of counsel to the Company and of
its independent public accountants and any other accounting and legal fees, charges and expenses
incurred by the Company (including, without limitation, any expenses arising from any special
audits or “comfort letters” required in connection with or incident to any registration), (ii) the
fees, charges and disbursements of any advisors or special experts retained by the Company in
connection with any registration pursuant to the terms of this Agreement, (iii) all internal
expenses of the Company (including, without limitation, all salaries and expenses of its officers
and employees performing legal or accounting duties), and (iv) Securities Act liability insurance
(if the Company elects to obtain such insurance), regardless of whether any Registration Statement
filed in connection with such registration is declared or otherwise becomes effective.
“Delay Fee” shall have the meaning assigned to it in Section 3(a) hereof.
“Delay
Fee Payment Date” shall have the meaning assigned to it in Section 3(b) hereof.
“Equity Registration Rights Agreement” means the Registration Rights Agreement dated as of November
26, 2006, by Satélites Mexicanos, S.A. de C.V., for the benefit of each of the holders of the
registrable securities listed on Schedule A of that agreement.
“Exchange Act” means the Securities Exchange Act of 1934, as amended or any successor federal
statute in effect, and the rules and regulations of the SEC promulgated thereunder, all as the same
may be in effect from time to time.
“First Priority Notes” shall have the meaning assigned to it in the recitals hereto.
“First Priority Senior Secured Note Indenture” means the Indenture, dated as of November 30, 2006,
by and between the Company, as issuer, each of the guarantors named therein, and HSBC Bank USA,
National Association, as trustee, pursuant to which the First Priority Notes are being issued, as
amended, modified and/or supplemented from time to time in accordance with the terms thereof.
“Holder” or “Holders” means a Person that (i) (A) together with its Affiliates, as of the date
hereof, is the beneficial owner of five percent (5%) or more of the First Priority Notes and is
listed on Schedule A hereto, or (B) at any time is a beneficial owner of Second Priority
Notes and has an officer or employee that serves as, or such Person otherwise designates, a
director or officer of the Company, and is listed on Schedule A hereto, and (ii) at the
time of giving a request for registration pursuant to Section 2 hereunder, determines, in the
exercise of its reasonable discretion, that such Person (or such Person and/or its Affiliates)
cannot transfer such Registrable Securities without registration under the Securities Act (without
regard to whether an exemption from registration is available, other than pursuant to an exemption
under section 1145 of the Bankruptcy Code), together with any permitted transferee of such Person
under Section 9 hereof; provided, that, Schedule A shall be deemed to be updated with the
information provided in connection with a permitted transfer under Section 9.
“Interest Payment Date” has the meaning ascribed to it in the First Priority Senior Secured Notes
Indenture.
“NASD” means the National Association of Securities Dealers, Inc.
“Notes”
means the First Priority
Notes.
“Participating Holders” means Holders participating, or electing to participate, in an offering of
Registrable Securities pursuant to this Agreement.
“Person” means any individual, firm, corporation, company, partnership, trust, incorporated or
unincorporated association, limited liability company, joint venture, joint stock company,
government (or an agency or political subdivision thereof) or other entity of any kind, and shall
include any successor (by merger or otherwise) of any such entity.
“Proposed
Registration” shall have the meaning assigned to it in Section 4(a) hereof.
“Prospectus” means the prospectus included in any Registration Statement.
“Registrable Securities” means each Note; provided, however, that Notes considered to be
Registrable Securities shall cease to be Registrable Securities (A) upon the sale thereof pursuant
to an effective registration statement, (B) upon the sale thereof pursuant to
Rule 144 (or successor rule) under the Securities Act, (C) when such securities cease to be
outstanding or (D) in a private transaction where the transferor’s rights under this Agreement are
not assigned, or are improperly assigned, pursuant to the terms and conditions of this Agreement.
“Registration Expenses” mean all expenses (other than any underwriting discounts and commissions)
arising from or incident to the performance hereof, or compliance herewith, including, without
limitation, (i) SEC, stock exchange, NASD and other registration and filing fees, (ii) all fees and
expenses incurred in connection with complying with any securities or blue sky laws (including,
without limitation, fees, charges and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), (iii) all printing, messenger and delivery expenses
and (iv) the fees and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange or Nasdaq.
“Registration Statement” means any registration statement of the Company filed with the SEC on the
appropriate form pursuant to the Securities Act, including without limitation, Form F-l (or Form
F-3, if such form may be utilized by the Company), which covers the registration of the Registrable
Securities pursuant to the provisions of this Agreement and all amendments and supplements to any
such Registration Statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all materials incorporated by reference
therein.
“SEC”
or “Commission” means the United States Securities and Exchange Commission.
“Second Priority Notes” means the notes Issued under the Second Priority Senior Secured Note
Indenture.
“Second Priority Senior Secured Note Indenture” means the Indenture, dated as of November 30, 2006,
by and between the Company, as issuer, each of the guarantors named therein, and Xxxxx Fargo Bank,
National Association, as amended, modified and/or supplemented from time to time in accordance with
the terms thereof.
“Securities Act” means the Securities Act of 1933, as amended, or any successor federal statute and
the rules and regulations of the Commission promulgated thereunder, as the same may be in effect
from time to time.
“Selling Expenses” shall mean the underwriting fees, discounts, selling commissions and stock
transfer taxes applicable to all Registrable Securities registered by the Participating Holders.
“SPSSN Indenture Registration Rights Agreement” means the Registration Rights Agreement dated as of
November 30, 2006, by Satélites Mexicanos, S.A. de C.V., for the benefit of each of the holders of
the registrable securities listed on Schedule A of that agreement.
Section 2.
Piggyback Registrations.
(a)
Right to Include Registrable Securities. Each time that the Company proposes
for any reason to register any of its Second Priority Notes, the Company shall promptly give
written notice of such Proposed Registration to all of the Holders of Registrable Securities (which
notice shall be given not less than thirty (30) days prior to the expected effective date of the
Registration Statement) and shall offer such Holders the right to request inclusion of any of such
Holder’s Registrable Securities in the Proposed Registration.
(b)
Piggyback Procedure. Each Holder of Registrable Securities shall have twenty
(20) days from the date of receipt of the Company’s notice
referred to in Section 2(a) above to deliver to the Company a written request specifying the number of Registrable
Securities such Holder intends to sell and such Holder’s intended method of disposition. Any
Holder shall have the right to withdraw such Holder’s request for inclusion of such Holder’s
Registrable Securities in any Registration Statement pursuant to this Section 2 by giving
written notice to the Company of such withdrawal within five (5) days prior to the expected
effective date of the Registration Statement. Subject to Section 2(c) below, the Company
shall include in such Registration Statement all such Registrable Securities so requested to be
included therein; provided, however, that the Company may at any time withdraw or cease
proceeding with any such Proposed Registration if it shall at the same time withdraw or cease
proceeding with the registration of all other securities of the Company originally proposed to be
registered in the Proposed Registration. In the event that the Proposed Registration by the
Company is, in whole or in part, an underwritten public offering of securities of the Company, any
request under this Section 2(b) shall specify that the Registrable Securities be included
in the underwriting on the same terms and conditions as the securities, if any, otherwise being
sold through underwriters under such Proposed Registration.
(c)
Priority for Piggyback Registration. Notwithstanding any other provision hereof,
if the managing underwriter of an underwritten public offering determines and advises the Company
and the Participating Holders in writing that the inclusion of all Registrable Securities and other
securities proposed to be included in the Registration Statement proposed to be included by the
Participating Holders of Registrable Securities in the underwritten public offering would
materially and adversely interfere with the successful marketing of the Company’s securities,
then the Participating Holders shall not be permitted to include any Registrable Securities in
excess of the amount, if any, of Registrable Securities which the managing underwriter of such
underwritten public offering shall reasonably and in good faith agree in writing to include in such
public offering in addition to the amount of securities to be registered for the account of the
Company. In no event shall any Registrable Securities be excluded from such offering unless all
other Holders’ securities are excluded. The Company will be obligated to include in such
Registration Statement, as to each Participating Holder, only that portion of the Registrable
Securities such Participating Holder has requested be registered equal to the product of (i) the
aggregate principal amount of Registrable Securities and other securities which the managing
underwriter agrees to include in the public offering and (ii) the ratio which the principal amount
of such Participating Holder’s requested Registrable Securities bears to the aggregate principal
amount of Registrable Securities requested to be included in such Registration Statement by all
Participating Holders who have requested that their Registrable
Securities be included in such Registration Statement and other securities proposed to be included
in the Registration Statement. It is acknowledged by the parties hereto that pursuant to the
foregoing provision, the securities to be included in a registration initiated by the Company shall
be allocated:
(i) first, to the Company;
(ii) second, pari passu to the Holders of the Second Priority Notes and the First Priority Notes;
and
(iii) third, to any others requesting registration of securities of the Company.
If as a
result of the provisions of this Section 2(c), any Holder shall not be entitled to
include all of its Registrable Securities in a registration that such Holder has requested to be so
included, such Holder may withdraw such Holder’s request to include Registrable Securities in such
Registration Statement.
Section 3. Delay Fee
(a) The Company agrees that the Holders will suffer damages if the Company fails to fulfill its
obligations under Section 2 hereof and that it would not be feasible to ascertain the extent of
such damages with precision. Accordingly:
(i) if the Company fails to offer the Holders the right to request inclusion of any of such
Holder’s Registrable Securities in a Proposed Registration pursuant to Section 2(b) hereof; or
(ii) if, after due receipt of a written request by a Holder pursuant to Section 2(b) hereof to
include its Registrable Securities in a Proposed Registration, the Company fails to include such
Registrable Securities in the Proposed Registration (subject to the limitations of Section 2(c)
hereof) upon effectiveness of the Registration Statement
(each such
event referred to in the preceding clauses (i) and (ii), a
“Registration Defaul”), then
the Company will pay a delay fee (the “Delay Fee”) on the Registrable Securities calculated for the
period from and including the date on which any such Registration Default shall occur to, but
excluding, the date on which all Registration Defaults have been cured. The Delay Fee shall be
calculated as a percentage of the aggregate principal amount of all Registrable Securities included
or required to be included in such Registration Statement, subject to Section 2(c), and the
percentage rate will be 0.25% per annum for the first thirty (30) day period immediately following
the occurrence of a Registration Default, and such rate will increase by an additional 0.25% per
annum for each thirty (30) day period thereafter until all Registration Defaults have been cured,
provided that the maximum Delay Fee rate shall be 1.00% per annum from and including the date on
which any such Registration Default shall occur to but excluding the earlier of (1) the date on
which all Registration Defaults have been cured or (2) the date on which all the Registrable
Securities included or required to be included in such Registration Statement cease to
be Registrable Securities. Such Delay Fee will be in addition to any interest payable from time to
time with respect to the Registrable Securities. If, after the cure of all Registration Defaults
then in effect, there is a subsequent Registration Default, the Delay Fee rate for such subsequent
Registration Default shall initially be 0.50% regardless of the rate in effect with respect to any
prior Registration Default at the time of cure of such Registration Default. Notwithstanding the
foregoing, the amount of a Delay Fee payable shall not increase because more than one Registration
Default has occurred and is pending.
(b) So long as Registrable Securities remain outstanding, the Company shall notify the
Participating Holders within ten (10) days after each and every date on which a Registration
Default occurs. Any Delay Fee will be payable by the Company in cash and be paid on each Interest
Payment Date of the Notes (each, a “Delay Fee
Payment Date”), commencing with the first such date
occurring after any such Delay Fee commences to accrue, to Participating Holders with respect to
Registrable Securities included or required to be included in such Registration Statement. The
amount of Delay Fee for Registrable Securities will be determined by multiplying the applicable
Delay Fee rate by the aggregate principal amount of all such Registrable Securities included or
required to be included in such Registration Statement on the Delay Fee Payment Date following such
Registration Default in the case of the first such payment of Delay Fee (and thereafter at the next
succeeding Delay Fee Payment Date until the cure of such Registration Default), and then
multiplying such figure by a fraction, the numerator of which is the number of days such Delay Fee
rate was applicable during such period determined on the basis of a 360-day year comprised of
twelve thirty (30) day months (and, in the case of a partial month, the actual number of days
elapsed), and the denominator of which is 360.
Section 4.
Registration Procedures, (a) Obligations of the
Company. Whenever
registration of Registrable Securities is required pursuant to this Agreement, the Company shall
use commercially reasonable efforts to effect the registration and sale of such Registrable
Securities in accordance with the intended method of distribution thereof as promptly as possible,
and in connection with any such request, the Company shall:
(i) General Notifications. Promptly notify in writing the Participating Holders, the sales or
placement agent, if any, therefor and the managing underwriter of the securities being sold, (A)
when such Registration Statement or the Prospectus included therein or any Prospectus amendment or
supplement or post-effective amendment has been filed, and, with respect to any such Registration
Statement or any post-effective amendment, when the same has become effective, (B) when the SEC
notifies the Company whether there will be a “review” of such Registration Statement and (C) of any
written comments by the SEC and by the blue sky or securities commissioner or regulator of any
state with respect thereto or (D) of any request by the SEC for any amendments or supplements to
such Registration Statement or the Prospectus or for additional information;
(ii) 10b-5 Notification. Promptly notify in writing the Participating Holders, the sales or
placement agent, if any, therefor and the managing underwriter of the securities being sold
pursuant to any Registration Statement at any time when a Prospectus relating thereto is required
to be delivered under the Securities Act upon
discovery that, or upon the happening of any event as a result of which, any Prospectus included in
such Registration Statement (or amendment or supplement thereto) contains an untrue statement of a
material fact or omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances under which they were
made;
(iii) Notification of Stop Orders; Suspensions of Qualifications and Exemptions. Promptly notify in
writing the Participating Holders, the sales or placement agent, if any, therefor and the managing
underwriter of the securities being sold of the issuance by the SEC of (A) any stop order issued or
threatened to be issued by the SEC or (B) any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose;
(iv) Amendments and Supplements; Acceleration. (A) Prepare and file with the SEC such amendments
and supplements to each Registration Statement as may be necessary to comply with the provisions of
the Securities Act, including post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement continuously effective for the forty-five (45) days
and if applicable, file any Registration Statements pursuant to Rule 462(b) under the Securities
Act; (B) cause the related Prospectus to be supplemented by any required Prospectus supplement, and
as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; and (C) comply with the provisions of the Securities Act and
the Exchange Act with respect to the disposition of all securities covered by such Registration
Statement during such period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement as so amended or in such Prospectus as so
supplemented;
(v) Copies. Furnish as promptly as practicable to each Participating Holder and Inspector prior to
filing a Registration Statement or any supplement or amendment thereto, copies of such Registration
Statement, supplement or amendment as it is proposed to be filed, and after such filing such number
of copies of such Registration Statement, each amendment and supplement thereto (in each case
including all exhibits thereto), the Prospectus included in such Registration Statement (including
each preliminary Prospectus) and such other documents as each such Participating Holder or
underwriter may reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such Participating Holder;
(vi) Blue Sky. Use commercially reasonable efforts to, prior to any public offering of the
Registrable Securities, register or qualify (or seek an exemption from registration or
qualifications) such Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any Participating Holder or underwriter may request, and to continue such
qualification in effect in each such jurisdiction for as long as is permissible pursuant to the
laws of such jurisdiction, or for as long as a Participating Holder or underwriter requests or
until all of such Registrable Securities are sold, whichever is shortest, and do any and all other
acts and things which may be reasonably necessary or advisable to enable any Participating Holder
to consummate the disposition
in such jurisdictions of the Registrable Securities; provided, however, that the Company
shall not be required in connection therewith or as a condition thereto to qualify to do business
or to file a general consent of process in any such states or jurisdictions or subject itself to
material taxation in any such state or jurisdiction, but for this subparagraph;
(vii) Other Approvals. Use commercially reasonable efforts to obtain all other approvals, consents,
exemptions or authorizations from such governmental agencies or authorities as may be necessary to
enable the Participating Holders and underwriters to consummate the disposition of Registrable
Securities;
(viii) Agreements. Enter into and perform customary agreements (including any underwriting
agreements in customary form), and take such other actions as may be reasonably required in order
to expedite or facilitate the disposition of Registrable Securities;
(ix) “Cold Comfort” Letter. Obtain a “cold comfort” letter from the Company’s independent public
accountants in customary form and covering such matters of the type customarily covered by “cold
comfort” letters as the managing underwriter may reasonably request, and reasonably satisfactory to
a Majority in Interest of the Participating Holders;
(x) Legal Opinion. Furnish, at the request of any underwriter of Registrable Securities on the date
such securities are delivered to the underwriters for sale pursuant to such registration, an
opinion, dated such date, of counsel representing the Company for the purposes of such
registration, addressed to the Holders, and the placement agent or sales agent, if any, thereof and
the underwriters, if any, thereof, covering such legal matters with
respect to the registration in
respect of which such opinion is being given as such underwriter may reasonably request and as are
customarily included in such opinions;
(xi) SEC Compliance, Earnings Statement. Use commercially reasonable efforts to comply with all
applicable rules and regulations of the SEC and make available to its shareholders, as soon as
reasonably practicable, but no later than fifteen (15) months after the effective date of any
Registration Statement, an earnings statement covering a period of twelve (12) months beginning
after the effective date of such Registration Statement, in a manner which satisfies the provisions
of Section 11 (a) of the Securities Act and Rule 158 thereunder;
(xii) Certificates, Closing. Provide officers’ certificates and other customary closing documents;
(xiii) NASD. Cooperate with each Participating Holder and each underwriter participating in the
disposition of such Registrable Securities and underwriters’ counsel in connection with any filings
required to be made with the NASD;
(xiv) Transfer Agent, Registrar and CUSIP. Provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereto and a CUSIP number for all such Registrable
Securities, in each case, no later than the effective date of such registration; and
(xv) Commercially Reasonable Efforts. Use commercially reasonable efforts to take all other actions
necessary to effect the registration of the Registrable Securities contemplated hereby.
(b)
Holder Information. The Company may require each Participating Holder as to which
any registration of such Holder’s Registrable Securities is being effected to furnish to the
Company such information regarding such Participating Holder and such Participating Holder’s method
of distribution of such Registrable Securities as the Company may from time to time reasonably
request in writing. If a Participating Holder refuses to provide the Company with any of such
information on the grounds that it is not necessary to include such information in the Registration
Statement, the Company may exclude such Participating Holder’s Registrable Securities from the
Registration Statement if the Company provides such Participating Holder with an opinion of counsel
to the effect that such information must be included in the Registration Statement and such
Participating Holder continues thereafter to withhold such information. The exclusion of a
Participating Holder’s Registrable Securities shall not affect the registration of the other
Registrable Securities to be included in the Registration Statement.
(c) Notice to Discontinue. Each Participating Holder whose Registrable Securities
are covered by a Registration Statement filed pursuant to this Agreement agrees that, upon receipt
of written notice from the Company of the happening of any event of the kind described in
Section 3(a)(ii). such Participating Holder shall forthwith discontinue the disposition of
Registrable Securities until such Participating Holder’s receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(a)(ii) or until it is advised
in writing by the Company that the use of the Prospectus may be resumed and has received copies of
any additional or supplemental filings which are incorporated by reference into the Prospectus,
and, if so directed by the Company in the case of an event described
in Section 3(a)(ii),
such Participating Holder shall deliver to the Company (at the Company’s expense) all copies, other
than permanent file copies then in such Participating Holder’s possession, of the Prospectus
covering such Registrable Securities which is current at the time of receipt of such notice. If the
Company shall give any such notice, the Company shall extend the period during which such
Registration Statement is to be maintained effective by the number of days during the period from
and including the date of the giving of such notice pursuant to Section 3(a)(ii) to and
including the date when the Participating Holder shall have received the copies of the supplemented
or amended Prospectus contemplated by, and meeting the requirements
of, Section 3(a)(ii).
Section 5.
Registration Expenses. Except as otherwise provided herein, all Registration
Expenses and Selling Expenses shall be borne by the Participating Holders. All Registration
Expenses and Selling Expenses relating to Registrable Securities registered shall be borne by the
Participating Holders of such Registrable Securities pro rata on the basis of the number of
Registrable Securities so registered. The Company Expenses shall be borne by the Company.
Section 6. Certain Limitations On Registration Rights. No Holder may participate in any
Registration Statement hereunder involving an underwritten public offering unless such Holder
completes and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements, and other documents reasonably required under the terms of the underwriting
arrangements made in connection with such Registration Statement and agrees to sell such Holder’s
Registrable Securities on the basis provided in any underwriting agreement approved by the Holder
or Holders entitled hereunder to approve such arrangements; provided, however, that no such
Holder shall be required to make any representations or warranties to the Company or the
underwriters in connection with any such registration other than representations and warranties as
to (i) such Holder’s ownership of its Registrable Securities to be sold or transferred, (ii) such
Holder’s power and authority to effect such transfer and (iii) such matters pertaining to
compliance with securities laws as may be reasonably requested. Such Holders of Registrable
Securities to be sold by such underwriters may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of the Company to and for
the benefit of such underwriters, shall also be made to and for the benefit of such Holders and
that any or all of the conditions precedent to the obligations of the underwriters under the
underwriting agreement be conditions precedent to the obligations of the Holders.
Section 7. Transfer of Registration Rights. The rights of a Holder hereunder may be
transferred or assigned in connection with a transfer of Registrable Securities to (i) any
Affiliate of a Holder, (ii) any subsidiary, parent, general partner, limited partner, stockholder
or member of a Holder and any retired general partner or retired managing member of a Holder, (iii)
any family member or trust for the benefit of any Holder or (iv) any transferee who, after such
transfer, continues to hold Registrable Securities. Notwithstanding the foregoing, such rights may
only be transferred or assigned provided that all of the following additional conditions are
satisfied: (a) such transfer or assignment is effected in accordance with applicable securities
laws; (b) such transferee or assignee agrees in writing to become subject to the terms of this
Agreement (including, but not limited to, the restrictions on disposition of Registrable
Securities) and (c) the Company is given written notice by such Holder of such transfer or
assignment, stating the name and address of the transferee or assignee and identifying the
Registrable Securities with respect to which such rights are being transferred or assigned.
Section 8. Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties in respect of the subject matter hereof and supersedes all prior
understandings, agreements or representations by or among the parties, written or oral, to the
extent they relate in any way to the subject matter hereof.
Section 9. Assignment; Binding Effect. No party may assign either this Agreement or any of
its rights, interests or obligations hereunder without the prior written approval of the other
parties. All of the terms, agreements, covenants, representations, warranties and conditions of
this Agreement are binding upon, and inure to the benefit of and are enforceable by, the parties
and their respective successors and permitted assigns.
Section 10. Notices. All notices, requests, demands, claims and other communications
hereunder shall be in writing and shall be (a) transmitted by hand delivery, (b) mailed by first
class, registered or certified mail, postage prepaid, (c) transmitted by
overnight courier or (d) transmitted by telecopy, and in each case, if to the Company, at the
address set forth below:
| Satélites Mexicanos, S.A. de C.V. Xxxxxxx Xxxxx #86 Col. Lomas xx Xxxxxx Xxxxxx X.X. 00000 Xxxxxx |
||||
| Telephone: | (52) (00) 0000-0000 | |||
| Facsimile: | (52) (00) 0000-0000 | |||
| Attention: | General Counsel | |||
with a copy (which shall not constitute notice) to:
| Milbank, Tweed, Xxxxxx & Xxxxx LLP 0 Xxxxx Xxxxxxxxx Xxxxx Xxx Xxxx, XX 00000 |
||||
| Telephone: | (000) 000-0000 | |||
| Facsimile: | (000) 000-0000 | |||
| Attention: | Xxxxxxx X. Xxxxxxx, Esq | |||
| Xxx X. Xxxxxxx, Esq. | ||||
| Xxxxxxx X. Xxxx, Esq. | ||||
if to a Holder, to the address set forth on Schedule A to this Agreement, with a copy (which shall
not constitute notice) to:
| Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP 00 Xxxxx Xxxxxx Xxxxxx, XX 00000 |
||||
| Telephone: | 000-000-0000 | |||
| Facsimile: | 617-526-5000 | |||
| Attention: | Xxxxxx X. Xxxxxxx, Esq. | |||
| Xxxxxx X. Xxxxxxx, Xx., Esq. | ||||
Notices mailed or transmitted in accordance with the foregoing shall be deemed to have been given
upon receipt. Notices may be given by United States of America counsel to the party hereto.
Section 11.
Specific Performance; Remedies. Each party acknowledges and agrees that the
other parties would be damaged irreparably if any provision of this Agreement were not performed in
accordance with its specific terms or were otherwise breached. Accordingly, the parties will be
entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement
and to enforce specifically this Agreement and its provisions in any action or proceeding
instituted in any state or federal court sitting in the State of New York having jurisdiction over
the parties and the matter, in addition to any other remedy to which they may be entitled, at law
or in equity. Except as expressly provided herein, the rights, obligations and remedies created by
this Agreement are cumulative and in addition to any other rights,
obligations or remedies otherwise available at law or in equity. Except as expressly provided
herein, nothing herein will be considered an election of remedies.
Section 12. Submission to Jurisdiction; Waiver of Jury Trial.
(a) Submission to Jurisdiction. Any action, suit or proceeding seeking to enforce
any provision of, or based on any matter arising out of or in connection with, this Agreement or
the transactions contemplated hereby must be brought in any federal court located in the State of
New York or any New York state court, and each party consents to the exclusive jurisdiction and
venue of such courts (and of the appropriate appellate courts therefrom) in any such action, suit
or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it
may now or hereafter have to the laying of the venue of any such, action, suit or proceeding in any
such court or that any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum. Process in any such action, suit or proceeding may be served on any party
anywhere in the world, whether within or without the jurisdiction of any such court. Without
limiting the foregoing, service of process on such party as provided in Section 17(c) shall
be deemed effective service of process on such party.
(b)
Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES THAT ANY DISPUTE THAT MAY ARISE
OUT OF OR RELATING TO THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE SUCH PARTY HEREBY EXPRESSLY WAIVES ITS RIGHT TO JURY TRIAL OF ANY DISPUTE BASED UPON
OR ARISING OUT OF THIS AGREEMENT OR ANY OTHER AGREEMENTS RELATING HERETO OR ANY
DEALINGS AMONG THEM RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY. THE SCOPE OF THIS WAIVER IS
INTENDED TO ENCOMPASS ANY AND ALL ACTIONS, SUITS AND PROCEEDINGS THAT RELATE TO THE
SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH
PARTY REPRESENTS THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT IN THE EVENT OF ANY
ACTION, SUIT OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) SUCH PARTY UNDERSTANDS
AND WITH THE ADVICE OF COUNSEL HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) SUCH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (iv) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND REPRESENTATIONS IN
THIS SECTION 17(b).
(c)
Service of Process. By the execution and delivery of this Agreement, the
Company hereby appoints CT Corporation System as its authorized agent upon which process may be
served in any legal action or proceeding which may be instituted in any federal or state court in
the Borough of Manhattan, The City of New York, arising out of or relating to this Agreement.
Service of process upon such agent at the office of such agent at 000 Xxxxxx Xxxxxx Xxx Xxxx, XX
00000, and written notice of said service to the Company at its address set forth in Section
15 hereof, shall be deemed in every respect effective service of process upon the Company in
any such legal action or proceeding. Such appointment shall be irrevocable so long
as the Holders shall have any rights pursuant to the terms thereof or of this Agreement until the
appointment of a successor by the Company and such successor’s acceptance of such appointment. The
Company further agrees to take any and all actions, including the execution and filing of any and
all such documents and instruments, as may be necessary to continue such designation and
appointment of such agent or successor.
Section 13. Governing Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York, without giving effect to any choice of law principles.
Section 14. Headings. The article and section headings contained in this Agreement are
inserted for convenience only and will not affect in any way the meaning or interpretation of this
Agreement.
Section 15. Amendments. An amendment or modification to any provision of this Agreement
will require the written consent of the Company and the holders of at least 66 2/3% of the Second
Priority Notes then outstanding.
Section 16. Extensions; Waivers. Any party may, for itself only, (a) extend the time for
the performance of any of the obligations of any other party under this Agreement, (b) waive any
inaccuracies in the representations and warranties of any other party contained herein or in any
document delivered pursuant hereto and (c) waive compliance with any of the agreements or
conditions for the benefit of such party contained herein. Any such extension or waiver will be
valid only if set forth in a writing signed by the party to be bound thereby. No waiver by any
party of any default, misrepresentation or breach of warranty or covenant hereunder, whether
intentional or not, may be deemed to extend to any prior or subsequent default, misrepresentation
or breach of warranty or covenant hereunder or affect in any way any rights arising because of any
prior or subsequent such occurrence. Neither the failure nor any delay on the part of any party to
exercise any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right or remedy preclude any other or further exercise of the
same or of any other right or remedy.
Section 17. Severability. The provisions of this Agreement will be deemed severable and the
invalidity or unenforceability of any provision will not affect the validity or enforceability of
the other provisions hereof; provided, that if any provision of this Agreement, as applied
to any party or to any circumstance, is judicially determined not to be enforceable in accordance
with its terms, the parties agree that the court judicially making such determination may modify
the provision in a manner consistent with its objectives such that it is enforceable, and/or to
delete specific words or phrases, and in its modified form, such provision will then be enforceable
and will be enforced.
Section 18. Counterparts; Effectiveness. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original but all of which together will constitute
one and the same instrument. This Agreement will become effective when one or more counterparts
have been signed by each of the parties and delivered to the other parties. For purposes of
determining whether a party has signed this Agreement or any document contemplated hereby or any
amendment or waiver hereof, only a handwritten original signature
on a paper document or a facsimile copy of such a handwritten original signature shall constitute a
signature, notwithstanding any law relating to or enabling the creation, execution or delivery of
any contract or signature by electronic means.
Section 19. Construction. This Agreement has been freely and fairly negotiated among the
parties. If an ambiguity or question of intent or interpretation arises, this Agreement will be
construed as if drafted jointly by the parties and no presumption or burden of proof will arise
favoring or disfavoring any party because of the authorship of any provision of this Agreement. Any
reference to any law will be deemed also to refer to such law as amended and all rules and
regulations promulgated thereunder, unless the context requires otherwise. The words “include,”
“includes,” and “including” will be deemed to be followed by “without limitation.” Pronouns in
masculine, feminine, and neuter genders will be construed to include any other gender, and words in
the singular form will be construed to include the plural and vice versa, unless the context
otherwise requires. The words “this Agreement,” “herein,” “hereof,” “hereby,” “hereunder,” and
words of similar import refer to this Agreement as a whole and not to any particular subdivision
unless expressly so limited. The parties intend that each representation, warranty, and covenant
contained herein will have independent significance. If any party has breached any covenant
contained herein in any respect, the fact that there exists another covenant relating to the same
subject matter (regardless of the relative levels of specificity) which the party has not breached
will not detract from or mitigate the fact that the party is in breach of the first covenant.
Section 20. Third Party Beneficiaries. The Company acknowledges and agrees that the Holders
are third party beneficiaries of this Agreement and, as such, each Holder is entitled to all of the
benefits provided to the Holders hereunder and may enforce the terms of this Agreement. Upon any
Holder giving a request for registration pursuant to Section 2 hereunder, such Holder shall execute
an instrument of accession in form reasonable satisfactory to the Company acknowledging that such
Holder is bound by the terms and provisions of this Agreement.
IN WITNESS WHEREOF, the Company has executed this Registration Rights Agreement as
of the date first above written.
SATÉLITES MEXICANOS, S.A. DE C.V. |
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| By: | /s/ Xxxxxxx Xxxxxx | ||||
| Name: | Xxxxxxx Xxxxxx | ||||
| Title: EVP Finance & Administration Xxxxxxx Xxxxx #86 Col. Lomas xx Xxxxxx Xxxxxx X.X. 00000 Xxxxxx Telephone: (52) (00) 0000-0000 Fax: (52) (00) 0000-0000 |
|||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: General Counsel Xxxxxxx Xxxxx #86 Col. Lomas xx Xxxxxx Xxxxxx X.X. 00000 Xxxxxx Telephone: (52) (00) 0000-0000 Fax: (52) (00) 0000-0000 |
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