Exhibit 99.3
SES
Chateau de Betzdorf
L-6815 Betzdorf
Grand Duchy of Luxembourg
March 29, 2007
GE-CFE Luxembourg S. a ▇.▇.
GE Capital Equity Holdings Inc.
General Electric Capital Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Ladies and Gentlemen:
Reference is made to (i) the Share Redemption Agreement by and among SES, GE CFE
Luxembourg S. a ▇.▇., GE Capital Equity Holdings Inc., and General Electric
Capital Corporation, dated as of February 13, 2007 (the "Redemption Agreement")
and (ii) the escrow agreement, dated as of March 23, 2007, between SES, the GE
Entities and UBS AG, New York Branch, a U.S. branch of a Swiss banking
corporation ("UBS") (the "Escrow Agreement"). The parties to this letter
agreement (this "Letter Agreement") desire to amend the Redemption Agreement,
pursuant to Section 11.15 thereof, in the manner set forth in this Letter
Agreement. Capitalized terms not otherwise defined in this Letter Agreement
shall have the meaning assigned thereto in the Redemption Agreement.
The parties hereby amend the Redemption Agreement as follows:
1. Item 3 of Schedule 8.1(b)(iii) to the Redemption Agreement
("Japan: telecom authority approval, including AMC-23 landing
rights"), together with the related footnote (the "Japan
Telecom Approval"), shall be, and hereby is, deleted from such
Schedule 8.1(b)(iii), such that the Japan Telecom Approval
shall not be a condition to closing under Section 8.1 of the
Redemption Agreement; provided, however, that such deletion
shall not affect the parties' obligations with respect to the
Japan Telecom Approval under Section 6.6 of the Redemption
Agreement; provided, further, that SES shall cause Americom to
maintain in full force and effect the Japanese registration,
authorization and permit referred to in Items 4, 5 and 6 of
Schedule 3.2(g) to the Redemption Agreement (the "Japanese
Landing Rights") until such time as Americom Government
Services, Inc. ("AGS") holds the Japanese Landing Rights, from
which time SES shall cause AGS to maintain in full force and
effect the Japanese Landing Rights until such time as (i) the
parties agree in good faith that they are no longer required
for AGS' service in Japan or (ii) the GE Entities notify SES
that Americom or AGS may surrender or otherwise cause such
Japanese Landing Rights no longer to be in full force and
effect.
At Closing those services under the Americom/AGS Master
Agreement (as defined in Schedule 2.3(i) of the Schedules to
the Redemption Agreement) which relate to the provision of the
satellite transponder capacity on the AMC-23 Satellite in
Japan shall be provided through SES Americom. The Americom/AGS
Master Agreement shall provide that Americom is permitted to
re-sell such satellite transponder capacity to AGS and that GE
acts solely as provider of such satellite transponder capacity
to Americom and performs no other function with respect
thereto.
SES shall and shall cause AGS to use reasonable best efforts
to ensure that AGS is granted a type I license by the
appropriate Japanese regulatory Authorities. At such time as
AGS is granted a type I license by the appropriate Japanese
regulatory authorities, SES shall cause the AGS Contracts to
be assigned by Americom to Splitco and shall cause Americom to
agree to terminate the AMC Contract.
2. Section 8.1(b)(v) (Hong Kong Telecommunication Authority) of
the Redemption Agreement shall be, and hereby is, deleted in
its entirety; provided, however, that such deletion shall not
affect the parties' obligations under Section 6.6 of the
Redemption Agreement with respect to any formal consent or
other instrument required to be provided or issued by the Hong
Kong Telecommunications Authority for the purposes of a waiver
of compliance with note 4 of rule 26.2 of the Hong Kong
Takeover Code.
3. Section 8.1(b)(vi) of the Redemption Agreement shall be, and
hereby is, deleted in its entirety; provided, however, that
such deletion shall not affect the parties' obligations under
Section 6.6 of the Redemption Agreement with respect to such
matters.
4. Section 8.1(b)(iv) of the Redemption Agreement shall be, and
hereby is, deleted in its entirety; provided, however, that
such deletion shall not affect the parties' obligations under
Section 6.6 of the Redemption Agreement with respect to such
matters.
5. Notwithstanding anything to the contrary contained in the
Redemption Agreement, if the Closing occurs prior to April 5,
2007, then (i) at the Closing, legal title to the one hundred
and three million, one hundred and forty-nine thousand, nine
hundred (103,149,900) Class C Shares shall be held by UBS for
SES as the beneficial owner pursuant to the terms of the
Escrow Agreement in lieu of legal title to such Class C Shares
being assigned, transferred, conveyed and delivered directly
to SES by the GE Entities and (ii) for purposes of the
Redemption Agreement, the "Closing Date" shall be the date on
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which SES shall assign, transfer, convey and deliver to the GE
Entities and the GE Entities shall accept and acquire from
SES, each in proportion to their holdings of Class C Shares,
all of the Splitco Shares as consideration in kind for the
redemption by SES of the Class C Shares.
6. SES hereby designates Splitco as a third party beneficiary of
the provisions of Section 6.31(b) of the Redemption Agreement.
As a result, Splitco shall have the right and ability to
enforce the provisions of Section 6.31(b) as if it were a
party to the Redemption Agreement.
7. Section 2.4(a) of the Redemption Agreement shall be, and
hereby is, deleted in its entirety.
8. Section 5.4 of the Redemption Agreement is amended and
restated in its entirety to read as follows: "As of the date
hereof, CFE owns a total of 98,653,542 Class C Shares and GCEH
owns a total of 4,496,358 Class C Shares. As of the Closing,
UBS will have good and valid legal title to such Class C
Shares for SES as beneficial owner, free and clear of all
Encumbrances (except for Encumbrances created by this
Agreement, the Escrow Agreement and SES's organizational
documents). Upon transfer to SES of the Class C Shares in
accordance with the terms of the Escrow Agreement, and subject
to the registration of the transfer of the Class C Shares in
the register of SES, SES shall acquire good and valid legal
title to such shares, free and clear of any Encumbrances,
other than Encumbrances created by SES or any of its
Subsidiaries."
9. The GE Entities hereby agree and acknowledge that SES has
satisfied its obligations under Section 6.30(b) of the
Redemption Agreement.
10. Schedule 2.3(i) is amended and restated in its entirety as set
forth in Exhibit A attached hereto.
11. Item 3 of Schedule 6.27(a) is hereby amended and restated to
read in its entirety as follows: "Corporate Guarantee by SES
Global Europe S.A. in favor of Gilat, dated February 24,
2006." A new paragraph (c) is hereby added to Section 6.27 of
the Redemption Agreement to read as follows: "(c) In the event
that prior to Closing the GE Entities shall not have delivered
substitute guarantees of the GE Entities to replace the Master
Performance Guarantee by SES Astra S.A. dated July, 6, 2004,
then the GE Entities shall use reasonable best efforts to
deliver such substitute guarantee as promptly as practicable
(any documentation related to such substitute guarantee is
referred to as the "Alpine Agreements")." Notwithstanding any
provision in (i) the Deed of Novation and Amendment dated as
of March 29, 2007 between Gilat Satellite Networks Ltd, Gilat
Satellite Networks (Holland) B.V., Satlynx, SES Global Europe
SA and Splitco and (ii) the Alpine Agreements (together, the
"Novations"), the parties hereto agree that nothing in the
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Novations shall limit or in any manner affect the terms and
conditions set forth in the Redemption Agreement (including
the representations and warranties made thereunder by SES to
the GE Entities). If there shall be any conflict between (i)
the Novations, on the one hand, and (ii) the provisions of the
Redemption Agreement on the other hand, the provisions of the
Redemption Agreement shall govern.
12. A new Section 6.30(e) is hereby added to the Redemption
Agreement to read as follows: "For a period of six months
following the Closing Date, the GE Entities shall cause
Splitco and its Affiliates (including Satlynx) to retain and
use reasonable best efforts to keep safe any and all records
that relate to SES Digital Distribution Services S. a ▇.▇..
and SES Digital Distribution Services GmbH and which are kept
at the Satlynx facilities located at the Backnang site (the
"SDDS Records"). The GE Entities (i) shall cause Splitco and
its Affiliates to cooperate with SES to complete the retrieval
of such SDDS Records and their return to SES following the
Closing and (ii) hereby acknowledges on behalf of themselves
and their Affiliates that such SDDS Records shall remain at
all times the property of SES and its Affiliates."
13. The term "Ancillary Agreements" shall include the Forward Sale
Contract, dated as of the date hereof, between SES and SES
Digital Distribution Services S.a ▇.▇. ("SDDS") related to the
Excluded Satlynx Shares (the "FSC"). A new paragraph (i) shall
be, and hereby is, added to Section 4.6 of the Redemption
Agreement to read in its entirety as follows: "Immediately
following the closing of the transfer of the Excluded Satlynx
Shares to Luxco under the FSC, Luxco shall have good and valid
title to the Excluded Satlynx Shares, free and clear of all
Encumbrances (other than those imposed by the organizational
documents of Satlynx)."
14. A new paragraph (d) is added to Section 4.7 of the Redemption
Agreement to read in its entirety as follows: "As of the
Closing (i) (A) Splitco shall own all of the issued and
outstanding shares of Pacific-1 Holdings, Inc., a Delaware
corporation ("S1") and Pacific-2 Holdings, Inc, a Delaware
corporation ("S2") and SES International Holdings (Singapore)
Pte. Ltd ("SingCo") beneficially and of record, free and clear
of any Encumbrances and (B) S1 and S2 shall own all of the
issued and outstanding shares of Pacific-3 Holdings, Inc., a
Delaware corporation ("S3") and International Holdings S. a
▇.▇. ("Luxco" and, together with Singco, S1, S2 and S3, the
"Splitco Subsidiaries"), in each case beneficially and of
record, free and clear of any Encumbrances, (ii) all of the
outstanding shares of capital stock of the Splitco
Subsidiaries shall be duly authorized, validly issued, fully
paid and nonassessable, and not issued in violation of any
preemptive or similar rights, (iii) there shall be no
outstanding subscriptions, options, warrants, puts, calls,
agreements or other rights of any type or other securities of
any of the Splitco Subsidiaries other than those owned
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directly or indirectly by Splitco, and (iv) there shall be no
issued or outstanding bonds, debentures, notes or other
indebtedness for borrowed money of any of the Splitco
Subsidiaries."
15. Section 4.6(a) of the Redemption Agreement is amended and
restated in its entirety as follows: "As of the Closing, the
Equity Interests will be owned by the Splitco Subsidiaries in
a manner consistent with the Reorganization Plan, free and
clear of all Encumbrances (other than the Equity Interest
Encumbrances), and will be duly authorized, validly issued,
fully paid and, to the extent such concept is recognized by
applicable Law, nonassessable and not subject to any
preemptive or subscription rights (and not issued in violation
of any preemptive or subscription rights). The Splitco
Subsidiaries shall have good and valid title to the Equity
Interests as of the Closing in a manner consistent with the
Reorganization Plan. As of the Closing, other than as provided
in the Reorganization Plan, neither Splitco nor any Splitco
Subsidiary shall own, directly or indirectly (except (i) as a
result of the transfer of the Equity Interests pursuant to the
Reorganization Plan and (ii) for the direct or indirect
ownership of interest in other Splitco Subsidiaries), or have
entered into any agreement, arrangement or understanding to
purchase or sell any capital stock or other ownership
interests in any Person."
16. A new Section 6.30(f) is hereby added to the Redemption
Agreement to read as follows: "SES hereby agrees that
following the Closing and until April 29, 2007, it shall, and
shall cause its Affiliates to, use reasonable best efforts to
cause the Facilities to continue to be covered by the Foyer
Assurances property damage insurance policy that covers such
facilities as of the date hereof (the "Policy"); provided that
such coverage may be extended by the GE Entities for a period
ending on December 31, 2007 by providing written notice to SES
no later than April 15, 2007. The GE Entities hereby agree to
pay, or cause to be paid, to SES or its designated Affiliate
(i) promptly following the Closing the pro rata portion
payments made by SES and its Affiliates pre-Closing with
respect to the Policy to the extent any such premium relates
to post-Closing coverage of the Facilities, (ii) any
additional premium, costs and any other charges that become
payable by SES or any of its Affiliates with respect to the
Policy to the extent any such payments relate to post-Closing
coverage of the Facilities (provided that any such additional
charges shall be billed by SES to Splitco on a monthly basis
and the GE Entities shall cause Splitco to pay or cause to be
paid to SES any such charges so billed within 10 Business Days
after receipt of an invoice therefor). "Facilities" means,
collectively, the facilities currently occupied by Satlynx at
(i) ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇,▇- ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ and (ii) ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
The GE Entities and Splitco hereby agree to cause its
Affiliates to comply with the terms and conditions of the
Policy."
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17. Section 4.15(c) is hereby amended and extended to read as
follows: "Schedule 4.15(c) contains a summary as of the date
of this Agreement of the status of frequency registration at
the International Telecommunication Union ("ITU") by the
sponsoring national administration for the AMC-23 Satellite,
including the status with respect to the orbital position
hosting the AMC-23 Satellite, the identity of the sponsoring
administration and the frequency bands covered. The USASAT-60A
advance publication information and coordination request filed
with the International Telecommunications Union includes all
of the frequencies and other relevant technical parameters to
permit the AMC-23 Satellite to be operated under the
USASAT-60A filing in the same manner as it is currently
operated. The Inter-System Coordination Agreement listed as
item 7 in Schedule 4.15(d) relating to the Endeavor-1 filing
with the ITU by Australia provides the same protection to the
operations of the AMC-23 Satellite at 172(0) E.L. whether the
AMC-23 Satellite is operated under the USASAT-60A or
USASAT-14K filing. To the knowledge of SES, (i) the only
material satellite networks submitted to the ITU within four
degrees longitude from 172(0) WL and that have complete or
partial overlap with the USASAT-60A network are USASAT-14G at
169(0) EL filed by the United States and licensed to Intelsat;
USASAT-60J at 169(0) EL filed by the United States and
licensed to Intelsat; Endeavor-1 at 170(0) EL filed by
Australia on behalf of Intelsat (PanAmSat); AM-SAT 172E at
172(0) EL filed by the United Kingdom (Gibraltar) on behalf of
SES; USASAT-14K at 172(0) EL filed by the United States and
licensed to SES, and the United States filings at 174.0(0) and
176.0(0) made on behalf of Intelsat, (ii) SES has provided
information regarding coordination of AMC-23 Satellite with
these satellite networks as identified in Schedule 4.15(d),
(iii) coordination of the AMC-23 Satellite with the Intelsat
filings takes place under the auspices of the FCC and subject
to its rules regarding two-degree spacing and related matters,
and (iv) coordination with non-US systems occurs pursuant to
the ITU rules.
18. A new Section 6.32 is hereby added to the Redemption Agreement
to read as follows: "SES shall support, using reasonable best
efforts, commercially reasonable actions by Splitco to (i)
cause the ITU to publish ("Publication") in the Master
International Frequency Register ("MIFR") the frequencies
specified in the USASAT-14K filing (together with any
modifications thereto filed as of the date hereof, the
"USASAT-14K filing"), including as necessary correction of
findings made in the telefax dated March 23, 2007 from the ITU
to the FCC (the "March 23 ITU Notice"), and (ii) cause the FCC
to maintain the priority of the USASAT-60A filing (together
with any modifications thereto filed as of the date hereof,
the "USASAT-60A filing") until the earlier of Publication of
the frequencies specified in the USASAT-14K filing or the date
on which the frequencies specified in the USASAT-14K filing
are no longer capable of Publication. SES shall support, using
reasonable best efforts, commercially reasonable actions by
Splitco to cause the ITU to publish in the MIFR as soon as
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reasonably practicable the frequencies specified in the
USASAT-60A filing. In any event, SES shall support, using
reasonable best efforts, commercially reasonable actions by
Splitco to cause the FCC to make the frequencies specified in
the USASAT-14K and USASAT-60A filings available for use solely
by the AMC-23 Satellite at the 172(0) E.L. orbital position.
SES shall bear all its own costs and expenses associated with
the actions described in this paragraph, as well as pay as
directed by Splitco the reasonable incremental costs incurred
by or on behalf of SplitCo in connection with the correction
of the March 23 ITU Notice."
19. A new Section 6.33 is hereby added to the Redemption Agreement
to read as follows: ""With respect to the FSS satellite
network filed at the ITU as the AM-SAT 172E network under
Article 9 of the ITU Radio Regulations (the "AM-SAT 172E
Filing") submitted by the Administration of the United Kingdom
on behalf of its Overseas Territory of Gibraltar
(collectively, the "UK Administration"), and for the period
through the expiry of the AM-SAT 172E Filing as defined under
the ITU Radio Regulations, SES (i) shall not and shall cause
its Affiliates not to operate a satellite or authorize any
third party to operate a satellite at the 172(degree) E L
orbital location under the AM-SAT 172E Filing using the FSS
frequencies thereunder, (ii) at the direction of (and in
respect of third-party costs, for the account of) Splitco,
shall take (and shall cause its Affiliates to take) any
reasonable action with respect to the AM-SAT 172E Filing,
including without limitation using reasonable best efforts and
causing its Affiliates to use reasonable best efforts to
request the UK Administration (A) to maintain the AM-SAT 172E
filing at the ITU through its expiry with respect to the FSS
frequencies at 172(0) E.L. for the benefit of Splitco or any
other entity identified in writing to SES by Splitco, and (B)
to withhold agreement (unless requested otherwise by Splitco)
to any filing by a third party which could cause harmful
interference to the FSS frequencies at 172(0) E.L. and which
requires the agreement of the UK Administration; and (iii) to
the extent permitted by applicable law, and as requested by
Splitco, seek to transfer such rights, if any, as SES may have
in the AM-SAT 172E Filing insofar as they relate to the use of
the FSS frequencies at 172(0) EL."
20. Section 4.1(c) of the Redemption Agreement is amended and
restated in its entirety to read as follows: "Prior to the
Reorganization, Splitco and the Splitco Subsidiaries will have
no assets and no liabilities other than those de minimis
incidental to their formation and will not have undertaken any
business or activities other than in connection with this
Agreement and engaging in the transactions contemplated
hereby. As of the Closing Date, the assets and Liabilities of
Splitco and the Splitco Subsidiaries shall consist solely of
the AMC-23 Transferred Assets, the AMC-23 Assumed Liabilities,
the Equity Interests, the Cash Amount, de minimis liabilities
incidental to its formation and liabilities that shall be
Splitco's or any of the Splitco Subsidiaries' under the Tax
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Matters Agreement, and additional Non-Investment Assets
transferred pursuant to Section 3.10."
21. Item 3 of Schedule 1.1(d) is hereby amended and restated to
read in its entirety as follows: "The following two employees
will be transferred to Satlynx on or prior to Closing:
a. Siew ▇▇▇ ▇▇▇▇
▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇"
22. Notwithstanding anything to the contrary contained in the
Redemption Agreement or the Escrow Agreement dated as of March
29, 2007, by and between SES, the GE Entities, Splitco and
Deutsche Bank AG (the "Cash Escrow Agreement"), the parties
agree that SES shall on the date hereof contemporaneously with
the Closing give irrevocable instructions to Deutsche Bank AG
to have the Escrow Amount (as defined in the Escrow Agreement)
be delivered to the Escrow Agent (as defined in the Cash
Escrow Agreement) for value on the date hereof.
23. All references to "nine (9) months" in Section 6.31 and
3.11(c) of the Redemption Agreement shall be, and hereby are,
changed to "ten (10) months".
Other than as set forth herein, the Redemption Agreement shall remain
in full force and effect.
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This Letter Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York applicable to agreements made to
be performed entirely within such State. This Letter Agreement may be executed
in one or more counterparts, all of which shall be considered one and the same
agreement.
Sincerely,
SES
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: CEO
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: CFO
Agreed and acknowledged:
GE-CFE LUXEMBOURG S. A ▇.▇.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Attorney-in-fact
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Attorney-in-fact
GE CAPITAL EQUITY HOLDINGS INC.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Attorney-in-fact
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GENERAL ELECTRIC CAPITAL CORPORATION
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
cc: General Electric Capital Corporation
General Counsel
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇▇ ▇. ▇▇▇▇
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