WATT, TIEDER, HOFFAR & FITZGERALD, L.L.P. Jennifer Larkin Kneeland (VSB 71187) Marguerite Lee DeVoll (VSB 93474) 1765 Greensboro Station Place Suite 1000 McLean, Virginia 22102 [email protected][email protected]WHITE AND WILLIAMS LLP Heidi J. Sorvino (admitted pro hac vice) James C. Vandermark (admitted pro hac vice) 7 Times Square, Suite 2900 New York, NY 10036 (212) 244-9500 [email protected][email protected]IN THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION In re: INTELSAT, S.A. et al., 1 Debtor. Chapter 11 Case No. 20-32299 (KLP) (Jointly Administered) OBJECTION AND RESERVATION OF RIGHTS OF SPACE-COMMUNICATION LTD. TO THE DISCLOSURE STATEMENT FOR THE JOINT CHAPTER 11 PLAN OF REORGANIZATION OF INTELSAT S.A. AND ITS DEBTOR AFFILIATES Space-Communication Ltd. (“Spacecom”) hereby files this objection (the “Objection”) to the Disclosure Statement for the Joint Chapter 11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates [ECF No. 1468] (the “Disclosure Statement”) filed by the debtors in the above captioned chapter 11 proceedings (the “Debtors”). In support of this Objection, Spacecom submits the Declaration of Ariel Perets (the “Perets Declaration”), and states as follows: 1 Due to the large number of Debtors in these chapter 11 cases, for which joint administration has been granted, a complete list of the Debtor entities and the last four digits of their federal tax identification numbers is not provided herein. A complete list may be obtained on the website of the Debtors’ claims and noticing agent at https://cases.stretto.com/intelsat. Case 20-32299-KLP Doc 2627 Filed 08/18/21 Entered 08/18/21 14:48:56 Desc Main Document Page 1 of 14
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WATT, TIEDER, HOFFAR & FITZGERALD, L.L.P. Jennifer Larkin Kneeland (VSB 71187) Marguerite Lee DeVoll (VSB 93474) 1765 Greensboro Station Place Suite 1000 McLean, Virginia 22102 [email protected][email protected]
WHITE AND WILLIAMS LLP Heidi J. Sorvino (admitted pro hac vice) James C. Vandermark (admitted pro hac vice) 7 Times Square, Suite 2900 New York, NY 10036 (212) 244-9500 [email protected][email protected] IN THE UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION
In re:
INTELSAT, S.A. et al.,1 Debtor.
Chapter 11 Case No. 20-32299 (KLP) (Jointly Administered)
OBJECTION AND RESERVATION OF RIGHTS OF SPACE-COMMUNICATION LTD.
TO THE DISCLOSURE STATEMENT FOR THE JOINT CHAPTER 11 PLAN OF REORGANIZATION OF INTELSAT S.A. AND ITS DEBTOR AFFILIATES
Space-Communication Ltd. (“Spacecom”) hereby files this objection (the “Objection”) to
the Disclosure Statement for the Joint Chapter 11 Plan of Reorganization of Intelsat S.A. and Its
Debtor Affiliates [ECF No. 1468] (the “Disclosure Statement”) filed by the debtors in the above
captioned chapter 11 proceedings (the “Debtors”). In support of this Objection, Spacecom
submits the Declaration of Ariel Perets (the “Perets Declaration”), and states as follows:
1 Due to the large number of Debtors in these chapter 11 cases, for which joint administration has been granted, a complete list of the Debtor entities and the last four digits of their federal tax identification numbers is not provided herein. A complete list may be obtained on the website of the Debtors’ claims and noticing agent at https://cases.stretto.com/intelsat.
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1. Spacecom objects to the adequacy of the Disclosure Statement on the following
grounds:
a. The Disclosure Statement fails to describe either the litigation arising from the
Debtors proposed rejection of the Spacecom Agreements (as defined below) or the
impact of the Debtors’ potential loss of the exclusive use of the Group B
Frequencies (as defined below); and
b. The Disclosure Statement supports and describes a plan that provides for the
impermissible releases of third parties and therefore is unconfirmable as a matter
of law.
JURISDICTION AND VENUE
2. This Court has jurisdiction over this Motion pursuant to 28 U.S.C. §§ 157 and
1334. Venue of the Debtor’s Chapter 11 case and this Motion in this district is proper pursuant
to 28 U.S.C. §§ 1408 and 1409.
3. This is a core proceeding pursuant to 28 U.S.C. §§ 157(b).
4. The statutory predicates for the relief requested herein include Sections 105,
524, and 1125 of title 11 of the United States Code (the “Bankruptcy Code”).
FACTUAL BACKGROUND
5. Spacecom is a global fixed satellite operator and satellite service provider, offering
tailored end-to-end communication solutions to the media and broadband industries. Spacecom’s
partners include, a variety of leading broadcasters, satellite service providers, government
agencies, and other communications businesses throughout Europe, the Middle East, Asia, and
Africa. Perets Declaration, ¶ 3.
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Agreements Between the Parties
6. On August 31, 2013, Spacecom launched a new satellite known as AMOS-4, which
established an orbital position at 65ºE and began its commercial operation in such position during
December 2013. Perets Declaration, ¶ 4. This enabled Spacecom to provide a full range of satellite
services in Asia, the Middle East, and Africa, including extensive broadcast and broadband
services into both the urban and rural areas of these regions. Perets Declaration, ¶ 4. It is expected
the AMOS-4 will have a useful life expectancy of approximately fifteen (15) years. Perets
Declaration, ¶ 4.
7. Spacecom and Intelsat Satellite LLC (“Intelsat Satellite”) entered into that certain
Coordination Agreement dated June 6, 2013 (the “Coordination Agreement”) to establish
mutually acceptable conditions for the simultaneous operations of Spacecom networks at the
orbital location of 65ºE and Intelsat Satellite networks at the orbital locations of 62ºE, 64ºE, 66ºE,
and 68.5ºE. Perets Declaration, ¶ 5. The Coordination Agreement, inter alia, effectively provides
each party with the exclusive use of certain frequencies in certain geographical areas, in which the
other party originally had rights, as follows:
#Band Frequency Range
Associated Geographical
Area
Party with Use Rights Before Coordination
Agreement
Party with Use Rights Under the
Coordination Agreement
1 10.95-11.075 H-pol
South East Asia Intelsat Satellite Spacecom
2 12.6635-12.75 V-pol
Russian beam Intelsat Satellite Spacecom
3 13.75-13.8835 H/V-pol
Middle East/ Europe beam, Russian beam
Spacecom Intelsat Satellite
4 13.8835-14.0 V-pol
South African region
Spacecom Intelsat Satellite
5 14.0-14.125 H/V-pol
South East Asia Intelsat Satellite Spacecom
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Perets Declaration, ¶ 5. 8. Spacecom and Intelsat Satellite also entered into a Satellite Network Agreement
also dated June 6, 2013 (the “Satellite Network Agreement” or “SNA” and with the Coordination
Agreement, collectively, the “Spacecom Agreements”) to supplement the Coordination
Agreement with certain additional commercial terms, including Intelsat Satellite’s obligation to
pay Spacecom a coordination fee of US$650,000 per calendar year (the “Coordination Fee”) as
additional consideration for the transfer to Intelsat Satellite of the rights to use those certain
frequencies as more specifically set forth in the Spacecom Agreements (i.e., 13.75-13.8835 H/V-
pol, and 13.8835-14.0 V-pol, collectively, the “Group B Frequencies”). Perets Declaration, ¶ 6
and 9.
9. Based on Spacecom’s exclusive rights to use certain frequencies of Intelsat Satellite
at certain geographical areas as set forth in the Spacecom Agreements (i.e., 10.95-11.075 H-pol,
12.6635-12.75 V-pol, and 14.0-14.125 H/V-pol (collectively, “Group A Frequencies”)),
Spacecom entered into subsequent agreements with third parties (the “Third Party
Agreements”). Perets Declaration, ¶ 7. The Third Party Agreements provided certain third parties
with the right to use Group A Frequencies through the useful life of AMOS-4. Perets Declaration,
¶ 7. The AMOS-4 annual sales sum to $18 million. Furthermore, the AMOS-4 backlog
(contractual obligation to third parties) for future service sums to over $70 million. Perets
Declaration, ¶ 7.
10. In addition to the commercial uses that generate the significant revenue above,
certain government agencies use Group A Frequencies, including the State of Israel. Perets
Declaration, ¶ 8. Spacecom is unable to provide additional information regarding the government
use of Group A Frequencies due to the confidential and national interests involved. Perets
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Declaration, ¶ 8. However, it suffices to state that there are significant non-monetary values
attached to the continued use of Group A Frequencies by such government agencies. Perets
Declaration, ¶ 8. As clearly stated by Mr. Schubert in the FCC Letter, “[t]he national on-going
operations of the Israeli government as well as the operation of major international commercial
entities will be severely damaged by the unilateral rejection by Intelsat of the [Spacecom
Agreements].” Perets Declaration, ¶ 8. The FCC Letter also provides that “unilateral rejection of
a valid coordination agreement by Intelsat is an extreme and aggressive action which is not in line
of the ITU spirit…[and] might set a dangerous precedence in the world of coordination
agreements, which is governed by the ITU, and severally impair the utilization of satellite spectrum
by satellite operators and users, in contradiction to the ITU’s very basic concept of rational and
efficient use of the spectrum.” Perets Declaration, ¶ 8.
Bankruptcy
11. On May 13, 2020 (the “Petition Date”), the Debtors filed voluntary petitions for
relief under chapter 11 of the Bankruptcy Code.
12. On May 15, 2020, this Court entered the Order (I) Directing Joint Administration
of Chapter 11 Cases and (II) Granting Related Relief [ECF No. 89], which consolidated the
Debtors’ chapter 11 cases for procedural purposes only
13. On September 1, 2020, this Court entered the Order (I) Authorizing and Approving
Procedures to Reject or Assume Executory Contracts and Unexpired Leases, (II) Approving the
Form and Manner of the (A) Rejection Notice and (B) Assumption Notice, and (III) Granting
Related Relief [ECF No. 731] (the “Rejection Procedures Order”), which provided for, amongst
other things, the procedures applicable to rejection of certain contracts.
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14. On February 12, 2021, the Debtors filed the Disclosure Statement and the Joint
Chapter 11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates [ECF No. 1467] (the
“Plan”).2 Neither the Disclosure Statement nor the Plan include any reference to the Spacecom
Agreements, the Debtors’ exclusive use of the Group B Frequencies, or the potential termination
of their use of those frequencies.
15. On May 10, 2021, the Debtors filed the Notice of Rejection of Certain Executory
Contracts and/or Unexpired Leases [ECF No. 2160] (the “Rejection Notice”) seeking to reject
the Spacecom Agreements.
16. On May 24, 2021, Spacecom filed its Objection and Reservation of Rights of Space-
Communication Ltd. with Respect to Notice of Rejection of Certain Executory Contracts and/or
Unexpired Leases [ECF No. 2247] (the “Rejection Response”) to oppose the relief sought by the
Rejection Notice.
17. In the months following the filing of the Rejection Notice and Rejection Response,
Intelsat Satellite and Spacecom conferred to address the proposed rejection of the Spacecom
Agreements. As of the date of this Objection, the parties have not resolved their disputes and a
hearing to address the proposed rejection of the Spacecom Agreements has not been scheduled as
required by the Rejection Procedures Order. The rejection of the Spacecom Agreements may not
be resolved prior to the hearing on the Disclosure Statement or even confirmation of the Plan.
18. Since the Rejection Notice was filed, Intelsat Satellite has continued its exclusive
use of the Group B Frequencies. See Perets Declaration, ¶ 11. Although Intelsat Satellite seeks
the rejection of the Spacecom Agreements, it has benefited from the continued use of the Group B
2 Capitalized terms used herein but not defined shall have the meaning ascribed to them in the Plan.
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Frequencies and would likely face significant losses if it did not have the exclusive use of these
frequencies. See Perets Declaration, ¶ 11.
19. On August 6, 2021, the United States Trustee for Region Four (the “UST”) filed
the Amended Objection of the United States Trustee to Disclosure Statement for the Joint Chapter
11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates [ECF No. 2572] (the “UST
Objection”).
ARGUMENT
20. Section 1125 of the Bankruptcy Code prohibits the solicitation of votes on a
reorganization plan prior to court approval of a written disclosure statement (after notice and a
hearing) which contains “adequate information.” 11 U.S.C. § 1125(b). The “adequate
information” requirement is to allow creditors to make informed decisions on how to vote on a
plan and is designed to help creditors in their negotiations with debtors over the plan. See Century
Glove, Inc. v. First Am. Bank, 860 F.2d 94 (3d Cir. 1988); In re Pecht, 53 B.R. 768, (Bankr. E.D.
Va. 1985).
21. The Bankruptcy Code defines adequate information as:
…information of a kind, and in sufficient detail, as far as is reasonably practicable in light of the nature and history of the debtor and the condition of the debtor’s books and records, that would enable a hypothetical reasonable investor typical of holders of claim or interests of the relevant class to make an informed judgment about the plan…
11 U.S.C. § 1125(b).
22. Courts have held that an acceptable disclosure statement must contain “simple and
clear language delineating the consequences of the proposed plan on [creditors’] claims and the
possible [Bankruptcy] Code alternatives so that [creditors] can intelligently accept or reject the
Plan.” In re Copy Crafters Quickprint, Inc., 92 B.R. 973, 981 (Bankr. N.D.N.Y. 1988). In short,
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a proposed disclosure statement “must clearly and succinctly inform the average unsecured
creditor what it is going to get, when it is going to get it, and what contingencies there are to getting
its distribution.” In re Ferretti, 128 B.R. 16, 19 (Bankr. D.N.H. 1991).
I. The Disclosure Statement Must Provide a Complete and Accurate Description of the Proposed Rejection of the Spacecom Agreements
23. The Disclosure Statement fails to provide a complete and accurate description of
the potential rejection of the Spacecom Agreements and the potential impact on distributions to
creditors of Intelsat Satellite. The Disclosure Statement should include a complete description of
the nature of the claims asserted by Spacecom in response to the Rejection Notice and the potential
effect on the estate of the claims asserted.
24. Indeed, the Disclosure Statement does not refer in any way to the rejection of the
Spacecom Agreements. It also does not address the potential loss of the Group B Frequencies or
the impact that such a loss would have on Intelsat Satellite or any of the other Debtors. Without
this information, it is impossible for creditors of Intelsat Satellite to evaluate the accuracy of the
projected distributions asserted in the Disclosure Statement.
25. As the Disclosure Statement was filed almost three (3) months prior to the filing of
the Rejection Notice, it is possible the Debtors did not contemplate rejecting the Spacecom
Agreements at the time the Disclosure Statement was filed with the Court. The Disclosure
Statement should make clear what affect, if any, the rejection of the Spacecom Agreements may
have on the projected distributions to creditors of Intelsat Satellite. This should include a
description of revenue losses incurred by Intelsat Satellite from the loss of the Group B
Frequencies as well as the impact of Spacecom’s potential rejection damages, which may exceed
USD$70 million, that may result from the proposed rejection of the Spacecom Agreements.
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II. Approval of the Disclosure Statement Should Be Denied Because the Releases of Third Parties in the Plan Is Impermissible
26. Even if the Disclosure Statement provides adequate information, which it does not,
a disclosure statement that describes a plan that is unconfirmable on its face should not be
approved. In re Mohammad, 596 B.R. 34, 40-41 (Bankr. E.D. Va. 2019); see also John Hancock
Mut. Life Ins. Co. v. Route 37 Bus. Park Assocs., 987 F.2d 154, 157 (3d Cir. 1993); In re 266
Washington Assocs., 141 B.R. 275, 288 (Bankr. E.D.N.Y. 1992) (“A disclosure statement will not
be approved where, as here, it describes a plan which is fatally flawed and thus incapable of
confirmation”).
27. In fact, if the Plan on its face cannot be confirmed, it is incumbent on a court to
decline approval of the Disclosure Statement in order to prevent the diminution in the value of the
estate that would result from the expense of soliciting votes and seeking confirmation. In re Main
Street AC, Inc., 234 B.R. 771 (Bankr. N.D.Cal. 1999); In re Pecht, 57 B.R. 137, 139 (Bankr. E.D.
Va. 1986) (“If, on the face of the plan, the plan could not be confirmed, then the court will not
subject the estate to the expense of soliciting votes and seeking confirmation”).
28. The Debtors’ proposed Plan is not confirmable on its face because it impermissibly
provides for gratuitous releases of non-debtors. Specifically, the Plan provides for an absolute and
unconditional release for a number of non-debtor parties including the following (the “Released
Parties”):
a. Each of the Debtors; b. Each of the Reorganized Debtors; c. Each of the First Lien Lenders; d. Each of the First Lien Noteholders; e. The First Lien Agent; f. The Indenture Trustees; g. the Prepetition Collateral Trustee; h. the DIP Agent; i. each of the DIP Lenders;
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j. the Jackson Ad Hoc Group, and each member thereof; k. the HoldCo Creditor Ad Hoc Group, and each member thereof; l. the Jackson First Lien Noteholder Group and each member
thereof; m. each Consenting Creditor; n. each current and former Affiliate of each Entity in clause (a)
through the following clause (m); and o. (o) each Related Party of each Entity in clause (a) through this
clause (o); provided that any holder of a Claim or Interest that opts out of the releases shall not be a Released Party.
. Plan, Art. VIII(E).
29. To the extent that the Plan releases claims and causes of action against non-debtor
third parties, such releases are improper under section 524(e) of the Bankruptcy Code. The Fourth
Circuit has reiterated that “non-debtor releases should only be approved ‘cautiously and
infrequently.’” Nat’l Heritage Found., Inc. v. Highbourne Found., 2014 U.S. App. LEXIS 12144
* 4, No. 13-1608 (4th Cir., June 27, 2014) (quoting Behrmann v. Nat’l Heritage Found., Inc., 663
F.3d 704, 712-713 (4th Cir. 2011)). Courts have found third party releases are appropriate only in
extraordinary cases where the third parties receiving the releases provide substantial consideration
to the parties that are enjoined (e.g., creditors) for the loss of their rights against non-debtors.
Gillman v. Continental Airlines, 203 F.3d 203, 212 (3d Cir. 2000) (citing Menard-Sanford v.
Mabey (In re A.H. Robins Co.), 880 F.2d 694, 702 (4th Cir. 1989)).
30. When evaluating third party releases, the Fourth Circuit has directed bankruptcy
courts to consider the following six factors:
1) There is an identity interests between the debtor and the third party…; 2) The non-debtor has contributed substantial assets to the reorganization; 3) The injunction is essential to reorganization…; 4) The impacted class, or classes, has overwhelmingly voted to accept the plan; 5) The plan provides a mechanism to pay for all, or substantially all, of the class or
classes affected by the injunction; and 6) The plan provides an opportunity for those claimants who choose not to settle to
recover in full.
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Nat’l Heritage Found., 2014 U.S. App. LEXIS 12144 at *4-5 (quoting Class Five Nevada
Claimants v. Dow Corning Corp. (In re Dow Corning Corp.), 280 F.3d 648 (6th Cir. 2002)).
31. None of the factors have been shown to be present here. The Debtors have not
shown there is an identity of interest between the Debtor and all of the other Released Parties such
that the estate’s assets would be depleted by any litigation. Moreover, there is no showing that the
Released Parties are providing consideration – let alone “substantial consideration” – for the third
party releases or that providing the releases to each of the Released Parties is essential to the
reorganization. Finally, creditors’ claims are not being paid in full and claimants are not being
provided an opportunity to recover in full. Accordingly, the releases provided for in the Plan are
impermissible under the Bankruptcy Code and applicable Fourth Circuit case law.
32. In addition to the improper third party releases, the Plan permanently enjoins any
entity that may hold any claims against the Debtors, inter alia, from commencing or continuing
certain actions or other proceedings against the Debtors based on claims released under Article
VIII of the Plan. See Disclosure Statement, § III(P)(4); Plan, Art. VIII(G). This includes the
release of claims arising from “the business or contractual arrangements between the Debtors and
any Released Party”. See Disclosure Statement, § III(P)(2); Plan, Art. VIII(E). This injunction
provision might reasonably be interpreted to prohibit Spacecom from pursuing its claims as
asserted in the Rejection Response, including the continuation of its rights to the exclusive use of
the Group A Frequencies despite the Debtors’ rejection of the Spacecom Agreements. Thus, the
Plan should not prevent Spacecom from pursuing its claims against the Debtors to the extent its
rights survive the rejection of the Spacecom Agreements.
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33. The permanent injunction in the Plan may also be reasonably interpreted to
preclude Spacecom from pursuing claims against non-debtor entities. No justification for such
inappropriate relief and protection is provided in the Disclosure Statement.
34. For these reasons, the Plan is patently unconfirmable and the Disclosure Statement
describing it should not be approved.
III. Approval of the Disclosure Statement Should Be Further Denied For the Reasons Set Forth in the UST’s Objection Relating to the Third Party Releases 35. Spacecom joins in the objections to the Disclosure Statements as raised in Section
V of the UST Objection and hereby incorporates the same into this Objection as if set forth at
length.
REQUEST FOR JUDICIAL NOTICE
36. Pursuant to Rule 201 of the Federal Rules of Evidence (as incorporated by Rule
9017 of the Federal Rules of Bankruptcy Procedure), Spacecom respectfully request that this Court
take judicial notice of the pleadings filed in this case and the facts set forth in this Court’s Orders.
This specifically includes the Rejection Notice, the Rejection Response, and the UST’s Objection.
RESERVATION OF RIGHTS
37. Notwithstanding the foregoing, Spacecom expressly reserves all (and does not
hereby waive any) of its (a) rights, claims, counterclaims, defenses, interests, actions and remedies
related to (i) the assumption or rejection of any executory contract or unexpired lease to which it
is a counterpart, (ii) any claim or proof of claim that has been filed or may be filed in the future,
including any claim for rejection damages (iii) any administrative expense claim as may be
asserted hereinafter, including without limitation the right to a judicial determination of the
amount(s) due and owing with regard to any claim, (b) the right to resolution of all issues
implicated by Spacecom’s claims and/or contracts between Spacecom and the Debtors, (c) the
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right to amend, modify or supplement this Objection in response to, or as a result of, any
submission by any party-in-interest, (d) the right to adopt any other pleadings filed by any other
party related to Spacecom’s claims or this Objection, and (e) the right to discovery as permitted
for contested matters pursuant to Rule 9014 of the Federal Rules of Bankruptcy Procedures
(collectively, the “Reservation of Rights”).
CONCLUSION
38. WHEREFORE, Spacecom respectfully requests that the Court enter an order
denying approval of the Disclosure Statement unless it and the Plan are modified as set forth
herein, approving the Reservation of Rights, and granting such additional relief as this Court
deems just and proper.
Dated: August 18, 2021 WATT, TIEDER, HOFFAR & FITZGERALD L.L.P.
/s/ Marguerite Lee DeVoll Jennifer L. Kneeland (VSB 71187)
Marguerite Lee DeVoll (VSB 93474) 1765 Greensboro Station Place, Suite 1000 McLean, VA 22102 Phone: (703)749-1000 Fax: (703) 893-8029 [email protected][email protected]
-and-
WHITE AND WILLIAMS LLP Heidi J. Sorvino (admitted pro hac vice) James C. Vandermark (admitted pro hac vice) 7 Times Square, Suite 2900 New York, NY 10036 Phone: (212) 244-9500 [email protected][email protected]
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CERTIFICATE OF SERVICE
I, Marguerite Lee DeVoll, Esq., hereby certify that on August 18, 2021, I caused a true and
correct copy of the foregoing pleading to be served on all parties that have requested notice in
these Chapter 11 cases through the Court’s CM/ECF system and via e-mail the following:
Anthony R. Grossi Ameneh M. Bordi Kirkland & Ellis LLP 601 Lexington Avenue New York, New York 10222 [email protected][email protected] Co-Counsel to the Debtors and Debtors in Possession
Jeremy S. Williams Brian H. Richardson Kutak Rock LLP 901 East Byrd Street, Suite 1000 Richmond, Virginia 23219 [email protected][email protected] Co-Counsel to the Debtors and Debtors in Possession
Dennis F. Dunne Matthew L. Brod Milbank LLP 55 Hudson Yards New York, New York 10001 [email protected][email protected] Counsel for the Creditors’ Committee
WATT, TIEDER, HOFFAR & FITZGERALD, L.L.P. Jennifer Larkin Kneeland, Esq. Marguerite Lee DeVoll, Esq. 1765 Greensboro Station Place Suite 1000 McLean, Virginia 22102 [email protected]@watttieder.com
WHITE AND WILLIAMS LLP Heidi J. Sorvino, Esq. James C. Vandermark, Esq. 7 Times Square, Suite 2900 New York, NY 10036 (212) 244-9500 [email protected]@whiteandwilliams.com
IN THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
In re:
INTELSAT, S.A. et al.,1
Debtor.
Chapter 11
Case No. 20-32299 (KLP)
(Jointly Administered)
DECLARATION OF ARIEL PERETS IN SUPPORT OF THE OBJECTION AND RESERVATION OF RIGHTS OF SPACE-COMMUNICATION LTD.
TO THE DISCLOSURE STATEMENT FOR THE JOINT CHAPTER 11 PLAN OF REORGANIZATION OF INTELSAT S.A. AND ITS DEBTOR AFFILIATES
I, Ariel Perets, under penalty of perjury and pursuant to 28 U.S.C. § 1746, hereby submit
this declaration in support of the objection (the “Objection”)2 filed by Space-Communication
Ltd. (“Spacecom”) to the Disclosure Statement for the Joint Chapter 11 Plan of Reorganization
of Intelsat S.A. and Its Debtor Affiliates [ECF No. 1468] (the “Disclosure Statement”) filed by
the debtors in the above captioned chapter 11 proceedings (the “Debtors”) and state as follows:
1. I am a Director, Spectrum Development & Regulatory Affairs of Spacecom,
which is a counter-party to certain agreements with Intelsat Satellite LLC (“Intelsat Satellite”).
1 Due to the large number of Debtors in these chapter 11 cases, for which joint administration has been granted, a complete list of the Debtor entities and the last four digits of their federal tax identification numbers is not provided herein. A complete list may be obtained on the website of the Debtors’ claims and noticing agent at https://cases.stretto.com/intelsat. 2 Capitalized terms used herein but not defined shall have the meaning ascribed to them in the Objection.
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Unless otherwise indicated below, I make this declaration based on my personal knowledge and
my review of Spacecom’s business records as described in paragraph 2 below.
2. In my capacity with Spacecom, I am one of Spacecom’s employees responsible
for managing coordination contracts, including the Spacecom Agreements, which are the subject
of the Rejection Notice and Rejection Response. I have access to certain of Spacecom’s records,
including Spacecom’s records relating to the Spacecom Agreements. As stated in more detail
below, Spacecom entered into the Spacecom Agreements on or about June 6, 2013. Following
the date upon which Spacecom entered into the Spacecom Agreements, Spacecom made and
maintained computerized records indicating the sums advanced, and payments made, on account
of the Spacecom Agreements, in and communications between employees of Spacecom and
Intelsat Satellite, in the course of its regularly conducted business activities. Those records were
made at or near the time of the occurrence of the events which they reflect, by or from
information transmitted by a person with knowledge. It is the regular practice of Spacecom to
make and maintain such records in the ordinary course of a regularly conducted business activity
3. Spacecom is a global fixed satellite operator and satellite service provider,
offering tailored end-to-end communication solutions to the media and broadband industries.
Spacecom’s partners include, a variety of leading broadcasters, satellite service providers,
government agencies, and other communications businesses throughout Europe, the Middle East,
Asia and Africa.
4. On August 31, 2013, Spacecom launched a new satellite known as AMOS-4,
which established an orbital position at 65ºE and began its commercial operation in such position
during December 2013. This enabled Spacecom to provide a full range of satellite services in
Asia, the Middle Ease, and Africa, including extensive broadcast and broadband services into
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both the urban and rural areas of these regions. It is expected the AMOS-4 will have a useful life
expectancy of approximately fifteen (15) years.
5. Spacecom and Intelsat Satellite entered into that certain Coordination Agreement
dated June 6, 2013 (the “Coordination Agreement”) to establish mutually acceptable conditions
for the simultaneous operations of Spacecom networks at the orbital location of 65ºE and Intelsat
Satellite satellites at the networks locations 62ºE, 64ºE, 66ºE, and 68.5ºE. A true and correct
copy of the Coordination Agreement was previously provided to the Court as Exhibit A to the
Rejection Response. The Coordination Agreement, inter alia, effectively provides each party
with the exclusive use of certain frequencies in certain geographical areas, in which the other
party originally had rights, as follows:
#Band Frequency Range Associated Geographical
Area
Party with Use Rights Before Coordination
Agreement
Party with Use Rights Under the
Coordination Agreement
1 10.95-11.075 H-pol
South East Asia Intelsat Satellite Spacecom
2 12.6635-12.75 V-pol
Russian beam Intelsat Satellite Spacecom
3 13.75-13.8835 H/V-pol
Middle East/ Europe beam, Russian beam
Spacecom Intelsat Satellite
4 13.8835-14.0 V-pol
South African region
Spacecom Intelsat Satellite
5 14.0-14.125 H/V-pol
South East Asia Intelsat Satellite Spacecom
6. Spacecom and Intelsat Satellite also entered into a Satellite Network Agreement
also dated June 6, 2013 (the “Satellite Network Agreement” or “SNA” and with the
Coordination Agreement, collectively, the “Spacecom Agreements”) to supplement the
Coordination Agreement with certain additional commercial terms that provided for Intelsat
Satellite’s obligation to pay Spacecom a coordination fee of USD$650,000 per calendar year (the
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“Coordination Fee”). A true and correct copy of the Satellite Network Agreement was
previously provided to the Court as Exhibit B to the Rejection Response. The payment of the
Coordination Fee is the only obligation remaining under the Satellite Network Agreement, which
continues through the later to occur of (i) the 15th anniversary of the start of the commercial
operations of AMOS-4 (i.e. the end of 2028) or (ii) the cessation of station-kept operations of
AMOS-4 at the nominal orbital location of 65ºE.
7. Based on Spacecom’s exclusive rights to use certain frequencies at certain
geographical areas as set forth in the Spacecom Agreements (i.e. 10.95-11.075 H-pol, 12.6635-
12.75 V-pol, and 14.0-14.125 H/V-pol (collectively, “Group A Frequencies”)), Spacecom
entered into subsequent agreements with third parties (the “Third Party Agreements”). The
Third Party Agreements provided certain third parties with the right to use Group A Frequencies
through the useful life of AMOS-4. The AMOS-4 annual sales sum to $18 million.
Furthermore, the AMOS-4 backlog (contractual obligation to third parties) for future service
sums to over $70 million.
8. In addition to the commercial uses that generate the significant revenue above,
certain government agencies use Group A Frequencies, including the State of Israel. Spacecom
is unable to provide additional information regarding the government use of Group A
Frequencies due to the confidential and national interests involved. However, it suffices to state
that there are significant non-monetary values attached to the continued use of Group A
Frequencies by such government agencies. As clearly stated by Mr. Schubert in the letter dated
May 23, 2021, sent by Mr. Nati Schubert, on behalf of the State of Israel’s Ministry of
Communications, to Jessica Rosenworcel, Acting Chairwoman of the Federal Communications
Commission (the “FCC Letter”), “[t]he national on-going operations of the Israeli government
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as well as the operation of major international commercial entities will be severely damaged by
the unilateral rejection by the Debtors of the [Spacecom Agreements].” A true and correct copy
of the FCC Letter was previously provided to the Court as Exhibit C to the Rejection Response.
The FCC Letter also provides that “unilateral rejection of a valid coordination agreement by
Intelsat is an extreme and aggressive action which is not in line of the ITU spirit…[and] might
set a dangerous precedence in the world of coordination and coordination agreements, which is
governed by the ITU, and severally impair the utilization of satellite spectrum by satellite
operators and users, in contradiction to the ITU very basic concept of rational and efficient use of
the spectrum.” The Debtors are well aware of the public interests involved and potential impact
of rejecting the Spacecom Agreements
9. Similarly, Intelsat Satellite also received the exclusive use of certain frequencies
pursuant to the Coordination Agreement (i.e. 13.75-13.8835 H/V-pol, and 13.8835-14.0 V-pol,
collectively, “Group B Frequencies”).
10. If the Spacecom Agreements are rejected and the rights to exclusive use of
frequencies terminated, it is estimated that Spacecom could face significant damages due to
revenue losses from the third-party agreements and potential damages owed to those third
parties. This does not include damages related to the government interests that are dependent on
the continued use of Group A Frequencies.
11. Even if Intelsat Satellite could avoid paying the Coordination Fee as a result of
rejecting the Spacecom Agreements, which is disputed, it would also likely incur damages from
losing the exclusive right to Group B Frequencies. Intelsat Satellite has benefited from the
continued use of those frequencies before and after the Petition Date and even to date; therefore,
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it is likely that Intelsat Satellite would face significant financial losses if it did not have the
exclusive right to Group B Frequencies.
12. For the forgoing reasons and as more fully set forth in the Objection, Spacecom is
respectfully requesting that the Court enter an order denying approval of the Disclosure
Statement unless it and the Plan are modified as set forth in the Objection, approving the
Reservation of Rights, and granting such additional relief as this Court deems just and proper.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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Creditor Name Attention Address 1 Address 2 Address 3 City State Zip Email Address Method5G Everywhere in America, LLC c/o Hirschler Fleischer PC Attn: Stephen E. Leach and
Robert R. Vieth8270 Greensboro Drive Suite 700 Tysons VA 22102 [email protected];
Ad Hoc Group of Convertible Noteholders c/o Stroock & Stroock & Lavan LLP Attn: Kristopher M. Hansen, Daniel A. Fliman, Sayan Bhattacharyya, Isaac S. Sasson
Ad Hoc Group of Convertible Noteholders c/o Boies Schiller Flexner LLP Attn: Marc V. Ayala 333 Main Street Armonk NY 10504 [email protected] EmailAd Hoc Group of Convertible Noteholders c/o Boies Schiller Flexner LLP Attn: Duane L. Loft 55 Hudson Yards 20th Floor New York NY 10001 [email protected] EmailAd Hoc Group of Equity Holders of Intelsat S.A.
c/o Kirby McInerney LLP Attn: David E. Kovel 250 Park Avenue, Suite 820 New York NY 10177 [email protected] Email
Ad Hoc Group of Equity Holders of Intelsat S.A.
c/o Foley & Lardner LLP Attn: Harold Kaplan 321 North Clark Street, Suite 3000 Chicago IL 60654-4762 [email protected] Email
Ad Hoc Group of Intelsat Jackson Debtholders
c/o Jones Day Attn: J. Ryan Sims 51 Louisiana Avenue, N.W. Washington DC 20001 [email protected] Email
Ad Hoc Group of Intelsat Jackson Debtholders
c/o Jones Day Attn: Nicholas J. Morin 250 Vesey Street New York NY 10281 [email protected] Email
Ad Hoc Group of Intelsat Jackson Debtholders
c/o Jones Day Attn: Bruce Bennett 555 South Flower Street Fiftieth Floor Los Angeles CA 90071 [email protected] Email
Ad Hoc Group of Secured Noteholders c/o Zemanian Law Group Attn: Peter G. Zemanian Paul A Driscol
Ad Hoc Group of Secured Noteholders c/o Wilmer Cutler Pickering Hale and Dorr LLP Attn: Benjamin W. Loveland 60 State Street Boston MA 02109 [email protected] Email
Ad Hoc Group of Secured Noteholders c/o Wilmer Cutler Pickering Hale and Dorr LLP Attn: Philip D. Anker Lauren R. Lifland Salvatore M.Daniele
Alabama Office of The Attorney General 501 Washington Ave Montgomery AL 36104 [email protected] EmailAmTrust North America, Inc. on behalf Assure Space LLC
c/o Maurice Wutscher LLP Attn Alan C. Hochheiser 23611 Chagrin Blvd., Suite 207 Beachwood CA 44122 [email protected] Email
AT&T Corp. and Affiliates c/o Arnold Porter Kaye Scholer LLP Attn: Brian J. Lohan 70 West Madison Street Suite 4200 Chicago IL 60602 [email protected] EmailAT&T Corp. and Affiliates Attn: James W. Grudus 1 Rockefeller Plaza, Room 18-
California Office of The Attorney General PO Box 944255 Sacramento CA 94244-2550 [email protected] EmailChubb Surety c/o Woods Rogers PLC Attn: Michael E. Hastings and
Jon Hollis901 East Byrd Street, Suite 1550 Richmond VA 23219 [email protected];
In re: Intelsat S.A. et al. Case No. 20‐32299 (KLP) Page 1 of 4
EXHIBIT A Case 20-32299-KLP Doc 2627-2 Filed 08/18/21 Entered 08/18/21 14:48:56 DescExhibit(s) Exhibit A (Service List) Page 1 of 4
Creditor Name Attention Address 1 Address 2 Address 3 City State Zip Email Address MethodColorado Office of The Attorney General Ralph L. Carr Judicial
Building1300 Broadway, 10Th Fl Denver CO 80203 [email protected] Email
Commonwealth of Pennsylvania c/o Office of Unemployment Compensation Services (UCTS)
Attn: Deb Secrest, Collections Support Unit
651 Boas Street Room 925 Harrisburg PA 17121 [email protected] Email
Connecticut Office of The Attorney General 165 Capitol Avenue Hartford CT 06106 [email protected] Email
Corporacion de Radio y Television del Norte de Mexico, S. de R.L. de C.V.
c/o Shulman Rogers Gandal Pordy & Ecker PA
Attn: Benjamin P. Smith, Esq. 12505 Park Potomac Ave Sixth Floor Potomac MD 20854 [email protected] Email
Counsel to the Special Committee of Intelsat (Luxembourg) S.A.
c/o Jenner & Block LLP Attn: Robert Gordon, Marc Hankin, Carl Wedoff
Cyrus Capital Partners, LP c/o Boies Schiller Flexner LLP Attn: Duane L. Loft 55 Hudson Yards, 20th Floor New York NY 10001 [email protected] EmailCyrus Capital Partners, LP c/o Nelson Mullins Riley & Scarborough LLP Attn: H. Jason Gold and
Dylan G. Trache101 Constitution Avenue, NW, Suite 900
Delaware Department of Justice Carvel State Office Building 820 N French Street Wilmington DE 19801 [email protected] EmailDelaware Trust Company 251 Little Falls Drive Wilmington DE 19808 [email protected];
Delaware Trust Company, as Trustee c/o Ropes & Gray LLP Attn: Mark R. Somerstein 1211 6th Avenue New York NY 10036 [email protected] EmailDelaware Trust Company, as Trustee c/o Hirschler Fleischer, P.C. Attn: Robert S. Westermann
Brittany B. FalabellaThe Edgeworth Building 2100 East Cary Street
Delaware Trust Company, as Trustee c/o Ropes & Gray LLP Attn: Andrew G. Devore Prudential Tower 800 Boylston Street Boston MA 02199-3600 [email protected] Email
Georgia Office of The Attorney General 40 Capitol Sq Sw Atlanta GA 30334 [email protected] EmailHawaii Department of The Attorney General 425 Queen Street Honolulu HI 96813 [email protected] Email
Hispasat, S.A c/o Hahn & Hessen LLP Attn: Janine M. Figueiredo 488 Madison Avenue New York NY 10022 [email protected] EmailHispasat, S.A. c/o Crowley, Liberatore PC Attn: Karen M. Crowley 150 Boush Street, Suite 604 Norfolk VA 23510 [email protected] EmailIntelsat Jackson Ad Hoc Group c/o Akin Gumpstrauss Hauer & Feld LLP Attn: Scott L. Alberino, Kate
International Telecommunications Satellite Organization
c/o K&L Gates LLP Attn: Amy J. Eldridge 1601 K Street, N.W. Washington DC 20006 [email protected] Email
Kirkland & Ellis Llp Attn: Edward O. Sassower, P.C., Steven N. Serajeddini, P.C., and Anthony R. Grossi
601 Lexington Avenue New York NY 10022 Mail
KTsat Co., Ltd c/o Lewis, Brisbois, Bisgaard & Smith, LLP Attn: Kathryn E. Bonorchis 1300 Light Street, Suite 1300 Baltimore MD 21202 [email protected] EmailKutak Rock LLP Attn: Michael A. Condyles, Peter J. Barrett,
Jeremy S. Williams, and Brian H. Richardson901 East Byrd St., Suite 1000 Richmond VA 23219 Mail
LionTree Advisors LLC c/o DLA Piper LLP (US) Attn: Noah M. Schottenstein 1900 North Pearl Street Dallas TX 75201 [email protected] Email
LionTree Advisors LLC c/o DLA Piper LLP (US) Attn: Rachel Ehrlich Albanese 1251 Avenue of the Americas New York NY 10020-1004 [email protected] Email
Louisiana Office of The Attorney General 1885 N. Third St Baton Rouge LA 70802 [email protected] EmailLoyens & Loeff Luxembourg Sarl Attn: Michael Scott 18-20, Rue Edward Steichen Luxembourg L-2540 [email protected] Email
Maryland Office of The Attorney General 200 St. Paul Pl Baltimore MD 21202 [email protected] EmailMiami-Dade Tax County Tax Collector c/o Miami Dade Bankruptcy Unit Attn: Priscilla A. Windley 200 NW 2nd Avenue #430 Miami FL 33128 [email protected];
National Association of Attorneys General Attn: Karen Cordry, Bankruptcy Counsel 1850 M Street NW 12th Floor Washington DC 20036 [email protected] Email
New Jersey Office of The Attorney General Richard J. Hughes Justice Complex
25 Market Street PO Box 106 Trenton NJ 08625 [email protected] Email
In re: Intelsat S.A. et al. Case No. 20‐32299 (KLP) Page 2 of 4
Case 20-32299-KLP Doc 2627-2 Filed 08/18/21 Entered 08/18/21 14:48:56 DescExhibit(s) Exhibit A (Service List) Page 2 of 4
Creditor Name Attention Address 1 Address 2 Address 3 City State Zip Email Address MethodNew York Office of The Attorney General The Capitol Albany NY 12224 [email protected] EmailOffice of The Attorney General of The District of Columbia
441 4th St Nw Suite 1100 Washington DC 20001 [email protected] Email
Office of The United States Trustee For The Eastern District of Virginia
Attn: Kenneth N. Whitehurst III, B. Webb King, Shannon F. Pecoraro, and Kathryn R. Montgomery
Official Committee of Unsecured Creditors c/o Milbank LLP Attn: Andrew M. Leblanc 1850 K Street, NW, Suite 1100 Washington DC 20006 [email protected] Email
Official Committee of Unsecured Creditors c/o Milbank LLP Attn: Dennis F. Dunne, Matthew Brod
Oracle America, Inc. c/o Buchalter, a Professional Corporation Attn: Shawn M. Christianson 55 Second Street, 17th Floor San Francisco CA 94105-3493 [email protected] Email
Panasonic Avionics Corp c/o Squire Patton Boggs (US) LLP Attn: Karol L. Denniston, Esq. 275 Battery Street Suite 2600 San Francisco CA 94111 [email protected] Email
Securities & Exhange Commission 100 F Street, Ne Washington DC 20549 [email protected] EmailSES Americom, Inc. c/o Gibson, Dunn & Crutcher LLP Attn: Brian M. Lutz 55 Mission St #3000 San Francisco CA 94105 [email protected] EmailSES Americom, Inc. c/o Gibson, Dunn & Crutcher LLP Attn: Orin Snyder, Michael A.
Rosenthal, Keith Martorana200 Park Avenue New York NY 10166-0193 [email protected];
SES Americom, Inc. c/o Gibson, Dunn & Crutcher LLP Attn: Matthew G. Bouslog 3161 Michelson Drive Irvine CA 92612-4412 [email protected] EmailSpace-Communication Ltd. c/o Watt, Tieder, Hoffar & Fitzgerald, LLP Attn: Marguerite Lee DeVoll &
Jennifer L. Kneeland1765 Greensboro Station Place Suite 1000 McLean VA 22102 [email protected];
Texas Office of The Attorney General 300 W. 15th St Austin TX 78701 [email protected] EmailThe Boeing Company c/o McGuireWoods LLP Attn: Douglas M. Foley and
Sarah B. BoehmGateway Plaza 800 East Canal Street Richmond VA 23219 [email protected];
The Macerich Company c/o Ballard Spahr LLP Attn: Dustin P. Branch 2029 Century Park East, Suite 800 Los Angeles CA 90067-2909 [email protected] EmailU.S. Bank National Association, as Indenture Trustee
c/o Kelley Drye & Warren LLP Attn: Joseph D. Wilson Washington Harbour, Suite 400 3050 K Street, NW
US Bank National Association Attn: Brandon Horak 60 Livingston Avenue EP-MN-WS3C Minneapolis MN 55107 [email protected] EmailUS Department of Justice c/o Commercial Litigation Branch, Civil
DivisionAttn: Ruth A. Harvey, Rodney A. Morris, Matthew J. Troy
US Department of Justice c/o Commercial Litigation Branch, Civil Division
Attn: Lloyd H. Randolph, Assistant Director
1100 L Street, NW Room 7032 Washington DC 20005 [email protected] Email
US Department of Justice Commercial Litigation Branch Civil Division Attn: Dominique V. Sinesi PO Box 875 Ben Franklin Station Washington DC 20044-0875 [email protected] Email
Virginia Office of The Attorney General 202 N. Ninth St. Richmond VA 23219 [email protected] EmailWells Fargo Bank, National Association Attn: Muneera Carr 420 Montgomery Street San Francisco CA 94104 [email protected] EmailWilmington Savings Fund Society, FSB Attn: Patrick J. Healy 500 Delaware Avenue, 11th
In re: Intelsat S.A. et al. Case No. 20‐32299 (KLP) Page 3 of 4
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Creditor Name Attention Address 1 Address 2 Address 3 City State Zip Email Address MethodWilmington Savings Fund Society, FSB c/o Seward & Kissel LLP Attn: John R. Ashmead,
Catherine V. LoTempioOne Battery Park Plaza New York NY 10004 [email protected];
