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EXHIBIT 4
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IRIDIUM OPERATING LLC
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SENIOR SECURED CREDIT AGREEMENT
dated as of
December 23, 1998
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$800,000,000
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CHASE SECURITIES INC.
and
BARCLAYS BANK PLC,
as Global Lead Arrangers and Joint Book Managers
THE CHASE MANHATTAN BANK,
as Administrative Agent and Collateral Agent
BARCLAYS BANK PLC,
as Documentation Agent
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
as Syndication Agent
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.................................................................................................1
SECTION 1.01. Defined Terms...............................................................................1
SECTION 1.02. Classification of Loans and Borrowings.....................................................27
SECTION 1.03. Terms Generally............................................................................28
SECTION 1.04. Accounting Terms; GAAP.....................................................................28
ARTICLE II THE CREDITS...............................................................................................28
SECTION 2.01. The Commitments............................................................................28
SECTION 2.02. Loans and Borrowings.......................................................................29
SECTION 2.03. Requests for Borrowings....................................................................29
SECTION 2.04. Funding of Borrowings......................................................................30
SECTION 2.05. Interest Elections.........................................................................30
SECTION 2.06. Termination of the Commitments.............................................................31
SECTION 2.07. Repayment of Loans; Evidence of Debt.......................................................32
SECTION 2.08. Optional Prepayment of Loans...............................................................32
SECTION 2.09. Mandatory Prepayments......................................................................33
SECTION 2.10. Fees.......................................................................................35
SECTION 2.11. Interest...................................................................................36
SECTION 2.12. Alternate Rate of Interest.................................................................36
SECTION 2.13. Increased Costs............................................................................37
SECTION 2.14. Break Funding Payments.....................................................................38
SECTION 2.15. Taxes......................................................................................39
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs................................40
SECTION 2.17. Mitigation Obligations; Replacement of Lenders.............................................41
ARTICLE III REPRESENTATIONS AND WARRANTIES...........................................................................42
SECTION 3.01. Organization; Qualification................................................................42
SECTION 3.02. Powers.....................................................................................42
SECTION 3.03. Authorization..............................................................................43
SECTION 3.04. No Conflicts...............................................................................43
SECTION 3.05. Enforceability.............................................................................43
SECTION 3.06. Government Approvals.......................................................................43
SECTION 3.07. Financial Condition; No Material Adverse Change............................................44
SECTION 3.08. Properties.................................................................................45
SECTION 3.09. Proceedings................................................................................45
SECTION 3.10. Compliance with Laws.......................................................................46
SECTION 3.11. Environmental Matters......................................................................46
SECTION 3.12. Investment and Holding Company Status......................................................46
SECTION 3.13. Taxes......................................................................................47
SECTION 3.14. ERISA......................................................................................47
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SECTION 3.15. Disclosure.................................................................................47
SECTION 3.16. Use of Credit..............................................................................48
SECTION 3.17. Debt Agreements............................................................................48
SECTION 3.18. Liens......................................................................................48
SECTION 3.19. Capitalization.............................................................................48
SECTION 3.20. Subsidiaries...............................................................................48
SECTION 3.21. Investments................................................................................49
SECTION 3.22. Restrictive Agreements.....................................................................49
SECTION 3.23. Business...................................................................................49
SECTION 3.24. Collateral; Security Interests.............................................................49
SECTION 3.25. Sufficiency of Project Documents...........................................................49
SECTION 3.26. Employee Matters...........................................................................50
SECTION 3.27. Other Transaction Parties..................................................................50
SECTION 3.28. Absence of Immunity........................................................................51
SECTION 3.29. Year 2000..................................................................................51
ARTICLE IV CONDITIONS................................................................................................51
SECTION 4.01. Conditions Precedent to the First Borrowing................................................51
SECTION 4.02. Conditions Precedent to the Second Borrowing...............................................52
ARTICLE V INFORMATION................................................................................................52
SECTION 5.01. Financial Statements and Other Information.................................................52
SECTION 5.02. Notices of Material Events.................................................................54
SECTION 5.03. Notices under Principal Project Documents..................................................54
ARTICLE VI AFFIRMATIVE COVENANTS.....................................................................................55
SECTION 6.01. Maintenance of Existence...................................................................55
SECTION 6.02. Maintenance of Properties..................................................................55
SECTION 6.03. Taxes......................................................................................55
SECTION 6.04. Compliance with Laws.......................................................................55
SECTION 6.05. Government Approvals.......................................................................55
SECTION 6.06. Environmental Compliance...................................................................56
SECTION 6.07. Books and Records..........................................................................56
SECTION 6.08. Inspection Rights..........................................................................56
SECTION 6.09. Use of Proceeds............................................................................57
SECTION 6.10. Collateral; Security Interests.............................................................57
SECTION 6.11. Certain Obligations Respecting Subsidiaries................................................60
SECTION 6.12. License Subsidiaries; Real Estate Subsidiaries.............................................61
ARTICLE VII NEGATIVE COVENANTS.......................................................................................62
SECTION 7.01. Indebtedness...............................................................................62
SECTION 7.02. Liens......................................................................................64
SECTION 7.03. Mergers, Consolidations, Etc...............................................................64
SECTION 7.04. Sale of Assets.............................................................................64
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SECTION 7.05. Purchase of Assets.........................................................................65
SECTION 7.06. Investments................................................................................65
SECTION 7.07. Restricted Payments........................................................................65
SECTION 7.08. Transactions with Affiliates...............................................................65
SECTION 7.09. Restrictive Agreements.....................................................................66
SECTION 7.10. Financial Covenants........................................................................66
SECTION 7.11. Capital Expenditures.......................................................................68
SECTION 7.12. Operating Leases...........................................................................68
SECTION 7.13. Sales and Lease-Backs......................................................................68
SECTION 7.14. Payment of Certain Indebtedness............................................................69
SECTION 7.15. Other Debt Obligations.....................................................................69
SECTION 7.16. Organizational Documents...................................................................70
SECTION 7.17. Nature of Business.........................................................................70
SECTION 7.18. Fiscal Year................................................................................70
ARTICLE VIII CERTAIN BUSINESS-RELATED COVENANTS; MOTOROLA GUARANTEE OBLIGATION.......................................71
SECTION 8.01. Insurance..................................................................................71
SECTION 8.02. Accounts...................................................................................73
SECTION 8.03. Approved Budget; Financial Projections.....................................................73
SECTION 8.04. Principal Project Documents................................................................74
SECTION 8.05. Other Project Documents....................................................................75
SECTION 8.06. Restoration................................................................................76
SECTION 8.07. Performance Standards......................................................................76
SECTION 8.08. Minimum Regulatory Approvals...............................................................76
SECTION 8.09. Motorola Guarantee Obligation..............................................................76
ARTICLE IX EVENTS OF DEFAULT.........................................................................................79
SECTION 9.01. Iridium Events of Defaults.................................................................79
SECTION 9.02. Motorola Events of Default.................................................................82
SECTION 9.03. Other Project Parties' Events of Default...................................................85
SECTION 9.04. Other Events of Default....................................................................86
ARTICLE X THE AGENTS AND GLOBAL LEAD ARRANGERS.......................................................................87
ARTICLE XI MISCELLANEOUS.............................................................................................89
SECTION 11.01. Notices...................................................................................89
SECTION 11.02. Waivers; Amendments.......................................................................90
SECTION 11.03. Expenses; Indemnity; Damage Waiver........................................................91
SECTION 11.04. Successors and Assigns....................................................................92
SECTION 11.05. Survival..................................................................................95
SECTION 11.06. Counterparts; Effectiveness; Integration..................................................95
SECTION 11.07. Severability..............................................................................95
SECTION 11.08. Right of Setoff...........................................................................96
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SECTION 11.09. Governing Law; Jurisdiction; Consent to Service of Process................................96
SECTION 11.10. WAIVER OF JURY TRIAL......................................................................97
SECTION 11.11. Headings..................................................................................97
SECTION 11.12. Confidentiality...........................................................................97
SECTION 11.13. No Third Party Beneficiaries..............................................................98
SCHEDULE I - Commitments
SCHEDULE II - Real Property
SCHEDULE III - Litigation
SCHEDULE IV - Environmental Matters
SCHEDULE V - Indebtedness
SCHEDULE VI - Liens
SCHEDULE VII - Subsidiaries
SCHEDULE VIII - Investments
SCHEDULE IX - Restrictive Agreements
SCHEDULE X - Employee Matters
SCHEDULE XI - Affiliate Agreements
APPENDIX 1 - Conditions Precedent
APPENDIX 2 - Insurance Program
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B - Form of Security Agreement
EXHIBIT C - Form of Parent Security Agreement
EXHIBIT D - Form of Subsidiary Guarantee Agreement
EXHIBIT E - Form of Subsidiary Guarantee Assumption Agreement
EXHIBIT F - Form of Depositary Agreement
EXHIBIT G - Form of Motorola Consent
EXHIBIT H - Form of Motorola Pledge Agreement
EXHIBIT I - Form of Borrowing Request
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SENIOR SECURED CREDIT AGREEMENT dated as of December 23, 1998
among:
IRIDIUM OPERATING LLC, a limited liability company duly organized
and validly existing under the laws of the State of Delaware (the
"Company");
Each of the lenders that is a signatory hereto identified under
the caption "LENDERS" on the signature pages hereto and each lender that
becomes a "Lender" after the date hereof pursuant to Section 11.04(b)
(individually, a "Lender" and, collectively, the "Lenders");
CHASE SECURITIES INC. and BARCLAYS BANK PLC, each in its capacity
as arranger in respect of this Agreement (each in such capacity, together
with its successors in such capacity, a "Global Lead Arranger" and,
collectively, the "Global Lead Arrangers");
THE CHASE MANHATTAN BANK, as administrative agent for the Lenders
(in such capacity, together with its successors in such capacity, the
"Administrative Agent") and as collateral agent (the "Collateral Agent");
and
BARCLAYS BANK PLC, as documentation agent for the Lenders (in such
capacity, together with its successors in such capacity, the
"Documentation Agent").
The Company has requested that the Lenders make loans to the
Company in an aggregate principal amount not exceeding $800,000,000 at any one
time outstanding for the purpose of refinancing certain existing indebtedness of
the Company, paying fees and expenses relating to the refinancing thereof
including with respect to this Agreement and paying costs incurred in the
development and operation of the IRIDIUM(R) business, and the Lenders are
prepared to make such loans upon the terms and conditions hereof. Accordingly,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Accounts" has the meaning assigned to such term in the Depositary
Agreement.
"Accrued Revenues" means all net revenues to the Company
and its Subsidiaries determined on a consolidated basis in accordance with GAAP,
except, with respect to equipment sales, which are net of cost of goods sold.
Senior Secured Credit Agreement
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"Adjusted EBITDA" means, for any period, with respect to the
Company and its Subsidiaries on a consolidated basis, without duplication, in
accordance with GAAP, the sum (without duplication) of (a) Adjusted Net Income,
plus (b) depreciation and amortization, plus (c) Interest Expense plus (d) all
other non-cash expenses, to the extent deducted in determining Adjusted Net
Income, plus (e) income tax expense, to the extent deducted in determining
Adjusted Net Income, minus (f) non-cash gains, to the extent included in
determining Adjusted Net Income.
"Adjusted LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Adjusted Net Income" means, for any period, the net income of the
Company and its Subsidiaries, determined on a consolidated basis, without
duplication, in accordance with GAAP; provided, however, that in calculating
Adjusted Net Income for any period all payments including deferred payments
under the O&M Contract for such period shall be deducted as an expense.
"Administrative Agent" means The Chase Manhattan Bank, in its
capacity as administrative agent for the Lenders hereunder and under the other
Credit Documents (or certain of them).
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affected Property" means, with respect to any Event of Loss, the
property of the Company or any of its Subsidiaries lost, destroyed, damaged,
condemned (including, without limitation, through a Condemnation) or otherwise
taken as a result of such Event of Loss.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
Notwithstanding the foregoing, no individual shall be an Affiliate solely by
reason of his or her being a director, officer or employee of the Company or any
of its Subsidiaries.
"Agents" means the Administrative Agent, the Collateral Agent and
the Documentation Agent.
"Agreement Regarding Guarantee" means the Third Amended and
Restated Agreement Regarding Guarantee dated as of December 23, 1998 among
Motorola, Iridium LLC and the Company, amending and restating the Second Amended
and Restated Agreement Regarding Guarantee dated as of May 11, 1998 among
Motorola, Iridium LLC and the Company, amending and restating the Amended and
Restated Agreement Regarding Guarantee dated as of July 11, 1997 between
Motorola and Iridium LLC, amending and restating the Agreement Regarding
Guarantee dated as of August 21, 1996 between Motorola and Iridium LLC.
Senior Secured Credit Agreement
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"Alternate Base Rate" means, for any day, a rate per annum equal
to the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Annual Budget" means a budget for Costs covering a fiscal year of
the Company adopted by the Company's board of directors in accordance with
Section 8.03(a).
"Annualized Adjusted EBITDA" means, as at any date, Adjusted
EBITDA for the two consecutive fiscal quarters ending on or most recently ended
prior to such date multiplied by two.
"Annualized Interest Expense" means, as at any date, Interest
Expense for the two consecutive fiscal quarters ending on or most recently ended
prior to such date multiplied by two.
"Applicable Margin" means (a) with respect to ABR Loans, 2.75% and
(b) with respect to Eurodollar Loans, 4.00%.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's aggregate
Commitments. If the Commitments have terminated or expired, the Applicable
Percentages shall be determined based upon the applicable Commitments most
recently in effect, giving effect to any assignments.
"Approved Budget" means, at any time, the Initial Approved Budget
or the Annual Budget, as the case may be, then in effect, and each amendment
thereof or supplement thereto in accordance with Section 8.03(a).
"Approved Budget Amount" means, as at any date, the sum of (a) the
aggregate Costs set forth in the Approved Budget for any period as originally in
effect, (b) from and after the adoption of the Approved Budget for the fiscal
year ending December 31, 1999, $75,000,000 and (c) any additional Costs incurred
by the Company in respect of handsets and/or pagers purchased from Motorola or
Kyocera, but only to the extent such Costs are paid with the proceeds of
Indebtedness permitted under Section 7.01(k).
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 11.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent
and the Company.
"Average Life" means, as of the date of determination with respect
to any Indebtedness, the quotient obtained by dividing (a) the sum of the
products of the number of years from the date of determination to the dates of
each successive scheduled principal payment of such Indebtedness multiplied by
the amount of such payment by (b) the sum of all such payments.
Senior Secured Credit Agreement
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"Barclays Capital" means Barclays Bank PLC.
"Board" means the Board of Governors of the Federal Reserve System
of the United States of America.
"board of directors" means, with respect to the Company or any
other Person, its board of directors or any committee thereof duly authorized by
such board of directors to take action on its behalf.
"Borrowing" means Loans made, converted or continued on the same
date and, in the case of Eurodollar Loans, asto which a single Interest Period
is in effect.
"Borrowing Request" means a request by the Company for a Borrowing
in accordance with Section 2.03, substantially in the form of Exhibit I.
"Budget Period" means, at any time, the fiscal quarter or fiscal
year, as applicable, covered by the Approved Budget in effect at such time.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in Dollar deposits in the London interbank
market.
"Capital Expenditures" means, for any period, the sum for the
Company and its Subsidiaries of the aggregate amount of cash expenditures
(including the aggregate amount of Capital Lease Obligations incurred during
such period) made to acquire or construct fixed assets, plant and equipment
(including renewals, improvements and replacements, but excluding Restorations
and other repairs) during such period, determined on a consolidated basis,
without duplication, in accordance with GAAP; provided that, for purposes of
this Agreement, payments under the O&M Contract shall not constitute Capital
Expenditures.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Chase" means The Chase Manhattan Bank.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Government
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.13(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
Senior Secured Credit Agreement
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(whether or not having the force of law) of any Government Authority made or
issued after the date of this Agreement.
"Closing Date" means the date (not later than December 31, 1998)
on which all of the conditions set forth in Section 4.01 shall have been
satisfied or waived pursuant to Section 11.02.
"Collateral" means the "Collateral" as such term is defined in the
respective Security Documents.
"Collateral Agent" means Chase in its capacity as collateral agent
under the Security Documents (or certain of them).
"Commitment" means, with respect to each Lender, the commitment,
if any, of such Lender to make Loans, expressed as an amount representing the
maximum aggregate amount of such Lender's Exposure hereunder, as such commitment
may be reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 11.04. The initial amount of each Lender's
Commitment is set forth on Schedule I, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Commitment, as applicable.
The initial aggregate amount of the Lenders' Commitments is $800,000,000.
"Commitment Termination Date" means the date occurring 30 days
after the Closing Date; provided that if such day is not a Business Day, the
Commitment Termination Date shall occur on the next succeeding Business Day.
"Company LLC Agreement" means the Limited Liability Company
Agreement of Iridium Operating LLC dated as of December 18, 1997, pursuant to
which the Company is organized.
"Condemnation" means the condemnation or seizure by a Government
Authority of, or requisition or taking by a Government Authority of title to,
all or any portion of the property of the Company or any of its Subsidiaries
under power of eminent domain or otherwise.
"Condemnation Proceeds" means all compensation, awards, damages
and other payments received by the Company or any of its Subsidiaries as a
result of any Condemnation.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise.
"Controlling" has the meaning correlative to the term "Control."
"Controlled" has the meaning correlative to the term "Control."
"Costs" means, for any period, all costs and expenses incurred or
to be incurred by the Company and its Subsidiaries on a consolidated basis
during such period in connection with the Iridium Business, including, without
limitation, all interest on and other regularly
Senior Secured Credit Agreement
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scheduled payments of Indebtedness permitted hereunder payable during such
period, Operation and Maintenance Expenses for such period, and expenses
(including, without limitation, all legal fees and related disbursements)
reasonably incurred in such period by the Company and its Subsidiaries in
connection with the preparation, negotiation, execution and delivery of any of
the Transaction Documents.
"Covenant Conversion Date" means December 31, 1999.
"Credit Documents" means, collectively, this Agreement, the
promissory notes (if any) issued hereunder, the Security Documents, the
Subsidiary Guarantee Agreement and the Motorola Agreements.
"Credit Parties" means, collectively, the Company and each of the
Subsidiary Guarantors.
"Cumulative Accrued Revenues" means, as at any date of
determination, all Accrued Revenues for the period commencing on November 1,
1998 and ending on such date.
"Cumulative Adjusted Accrued Revenues" means, as at any date of
determination, (a) Cumulative Accrued Revenues for the period ending on such
date, minus (b) any receivable included in Cumulative Accrued Revenues that is
payable more than 60 days after such date or is unpaid for more than 10 days
after the original due date thereof, minus (c) to the extent not deducted in
calculating Cumulative Accrued Revenues, discounts to, or rebates from, any
obligor of any receivable included therein (other than any receivable to the
extent excluded under clause (b) above).
"Cumulative Cash Revenues" means, as at any date of determination,
all revenues of the Company and its Subsidiaries in respect of the Iridium
Business received in Dollars (or in any other currency and converted into
Dollars) for the period commencing November 1, 1998 and ending on such date,
determined on a consolidated basis and without duplication.
"Current Assets" of any Person means all assets of such Person
that would, in accordance with GAAP, be classified as current assets of a
company conducting a business the same as or similar to that of such Person,
after deducting adequate reserves maintained in accordance with GAAP.
"Current Liabilities" of any Person means all obligations of such
Person that would, in accordance with GAAP, be classified as current liabilities
of such Person.
"Debt Incurrence" means the incurrence by the Company or any of
its Subsidiaries of any Indebtedness (other than any Equity Issuance).
"Debt Service" means, for any period, the sum for the Company and
its Subsidiaries, determined on a consolidated basis, without duplication, in
accordance with GAAP, of the following: (a) all regularly scheduled payments of
principal of any Indebtedness made during such period plus (b) all Interest
Expense for such period.
Senior Secured Credit Agreement
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"Default" means any event or condition which constitutes an Event
of Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Deferred O&M Amounts" means amounts owing to Motorola under the
O&M Contract aggregating up to $400,000,000 for the period commencing November
1998, together with any accrued interest thereon (and including any promissory
notes issued by the Company to Motorola to evidence such amounts and such
interest).
"Depositary Agreement" means the Deposit, Disbursement and Account
Control Agreement substantially in the form of Exhibit F between the Company,
the Collateral Agent and the Depositary Bank.
"Depositary Bank" means Chase in its capacity as depositary bank
under the Depositary Agreement.
"Dispose" has the meaning correlative to the term "Disposition."
"Disposition" means any sale, assignment, transfer or other
disposition of assets (whether now owned or hereafter acquired) of the Company
or any of its Subsidiaries by the Company or any of its Subsidiaries to any
other Person (other than any such sale, assignment, transfer or other
disposition constituting an Event of Loss).
"Dollars" or "$" refers to lawful money of the United States of
America.
"Domestic Subsidiary" means each Subsidiary of the Company that is
organized under the laws of the United States of America or any political
subdivision thereof.
"Environmental Claim" means, with respect to any Person, any
written notice, claim, administrative, regulatory or judicial action, suit,
judgment, written demand or other written communication by any other Person
alleging or asserting such Person's liability for investigatory costs, cleanup
costs, governmental response costs, damages to natural resources or other
property of such Person, personal injuries, fines, penalties or other actions
arising out of, based on or resulting from (a) the presence, Use, threatened
Release or Release into the environment of any Hazardous Material at any
location, whether or not owned by such Person or (b) any fact, circumstance,
condition or occurrence forming the basis of any violation, or alleged
violation, of any Environmental Law or other failure, or alleged failure, to
comply with the requirements of any Environmental Law.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Government Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to environmental health and safety matters.
"Equity Issuance" means (a) any issuance or sale by the Company or
any of its Subsidiaries of (i) any of its membership interests, capital stock or
other equity interests, (ii) any
Senior Secured Credit Agreement
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warrants or options exercisable in respect thereof or (iii) any other security
or instrument representing an equity interest in the Company or any of its
Subsidiaries, including any Indebtedness, interests, other securities or rights
of the Company or any of its Subsidiaries that are exchangeable for or
exercisable or convertible into equity interests of IWCL, the Company or any of
its Affiliates, either immediately or upon or after the arrival of a specified
date or the occurrence of a specified event or (b) the receipt by the Company or
any of its Subsidiaries after the date hereof of any capital contribution
(whether or not evidenced by any equity security issued by the recipient of such
contribution).
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the U.S. Tax Code, or, solely for purposes of
Section 302 of ERISA and Section 412 of the U.S. Tax Code, is treated as a
single employer under Section 414 of the U.S. Tax Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the U.S. Tax Code or Section 302 of ERISA), whether or
not waived; (c) the filing pursuant to Section 412(d) of the U.S. Tax Code or
Section 303(d) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (d) the incurrence by the Company or any of
its ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Plan; (e) the receipt by the Company or any ERISA
Affiliate from the PBGC or a plan administrator of any notice relating to an
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (f) the incurrence by the Company or any of its ERISA Affiliates of
any liability with respect to the withdrawal or partial withdrawal from any Plan
or Multiemployer Plan; or (g) the receipt by the Company or any ERISA Affiliate
of any notice, or the receipt by any Multiemployer Plan from the Company or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article IX.
"Event of Loss" means, with respect to any property of the Company
or any of its Subsidiaries, any loss of, destruction of or damage to, or any
condemnation (including, without limitation, a Condemnation) or other taking by
a Government Authority of, such property of the Company or any such Subsidiary.
"Excess Cash Flow" means, for any period, (a) Adjusted EBITDA for
such period, minus (b) the sum of (i) Debt Service for the Company and its
Subsidiaries for such
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period plus (ii) the aggregate amount of all Capital Expenditures for the
Company and its Subsidiaries made during such period, except for any such
Capital Expenditures to the extent financed with the proceeds of Indebtedness
incurred pursuant to Section 7.01(i) or (j) during such period plus (iii) the
aggregate amount of Restricted Payments paid during said period pursuant to
Section 7.07(a), minus (or plus) (c) the increase (or decrease) in Working
Capital of the Company and its Subsidiaries from the day immediately prior to
the first day of such period to the last day of such period.
"Excluded Debt Incurrence" means (a) Indebtedness incurred by the
Company or its Subsidiaries under Section 7.01 (other than clause (f) thereof)
and (b) any other Indebtedness of the Company or any of its Subsidiaries
permitted under Section 7.01(f) to the extent the proceeds thereof are used to
refinance any portion of Indebtedness of the Company or any of its Subsidiaries
that is guaranteed by Motorola pursuant to Section 7.01(c) and is included in
the $250,000,000 exclusion under clause (ii) of Section 2.09(j) (as contemplated
by the last sentence thereof).
"Excluded Disposition" means any Disposition permitted under one
of the specified clauses of Section 7.04 (other than clause (b) thereof).
"Excluded Equity Issuance" means (a) any issuance or sale of
capital stock or other equity interests by any Subsidiary of the Company to the
Company or any Wholly Owned Subsidiary of the Company, (b) any capital
contribution by the Company or any Wholly Owned Subsidiary of the Company to any
Subsidiary of the Company or (c) any Equity Issuance to the extent the proceeds
thereof are used to refinance any portion of Indebtedness of the Company or any
of its Subsidiaries that is guaranteed by Motorola pursuant to Section 7.01(c)
and is included in the $250,000,000 exclusion under clause (ii) of Section
2.09(j) (as contemplated by the last sentence thereof).
"Excluded Taxes" means, with respect to the Administrative Agent,
any Lender or any other recipient of any payment to be made by or on account of
any obligation of the Company hereunder, (a) income or franchise taxes imposed
on (or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which the Company is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Company under
Section 2.17(b)), any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement
or is attributable to such Foreign Lender's failure or inability to comply with
Section 2.15(e), except to the extent that such Foreign Lender's assignor (if
any) was entitled, at the time of assignment, to receive additional amounts from
the Company with respect to such withholding tax pursuant to Section 2.15(a).
"Existing Guaranteed Credit Agreement" has the meaning assigned to
such term in Section 6.09.
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"Existing Secured Credit Agreement" has the meaning assigned to
such term in Section 6.09.
"Existing Senior Notes" means, collectively, the Series A Senior
Notes, the Series B Senior Notes, the Series C Senior Notes and the Series D
Senior Notes.
"Existing Senior Subordinated Notes" means the Indebtedness of the
Company (as transferee of Iridium LLC) in respect of the 14 1/2% Senior
Subordinated Discount Notes due 2006 in an aggregate fully accreted principal
amount at the maturity of $480,000,000.
"Exposure" means, with respect to any Lender at any time, the
aggregate outstanding principal amount of such Lender's Loans at such time plus
the unutilized portion of such Lender's Commitment (if any).
"FCC" means the U.S. Federal Communications Commission.
"FCC License" means the authorization of the FCC held by Space
System License, Inc., a wholly owned Subsidiary of Motorola, as of the date of
this Agreement with respect to the construction, launch and operation of the
Iridium System as set forth in FCC's Orders and Authorizations DA 95-131,
released January 31, 1995, DA 95-372 released February 28, 1995, FCC 96-279,
released June 27, 1996 and DA 96-1789, released October 30, 1996.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Projections" means the financial projections for the
Company and its Subsidiaries set forth in Section 9 of the Information
Memorandum.
"Foreign Lender" means any Lender organized under the laws of a
jurisdiction other than the United States of America, any State thereof or the
District of Columbia.
"Foreign Subsidiary" means any Subsidiary of the Company other
than a Domestic Subsidiary.
"Gateway Authorization Agreements" means each gateway
authorization agreement between the investor party thereto and the Company
(as transferee of Iridium LLC).
"GAAP" means generally accepted accounting principles in the
United States of America, as in effect from time to time.
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"General Receipt & Disbursement Account" has the meaning assigned
to such term in the Depositary Agreement.
"Government Approval" means any authorization, consent, approval,
license, lease, ruling, permit, concession, grant, franchise, agreement, tariff,
rate, certification, exemption, filing or registration by or with any Government
Authority relating to the Iridium Business, the execution, delivery and
performance of the Transaction Documents, the creation, perfection and
enforcement of the Liens contemplated by the Security Documents and the other
transactions contemplated hereby.
"Government Authority" means the government of any nation or any
political subdivision thereof, whether state, territory, province or otherwise,
and any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory
or administrative powers or functions of or pertaining to government.
"Government Rule" means any statute, law, regulation, ordinance,
rule, judgment, order, decree, injunction, permit, concession, grant, franchise,
license, agreement, directive, environmental guideline, policy, restriction or
rule of common law, requirement of, or other governmental restriction or any
similar form of decision of or determination by, or any interpretation or
administration of any of the foregoing by, any Government Authority, whether now
or hereafter in effect.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any direct or indirect obligation of the guarantor (a)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation or to purchase (or to advance or supply
funds for the purchase of) any security for the payment thereof, (b) to purchase
or lease property, securities or services for the purpose of assuring the owner
of such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided that the term "Guarantee" shall not include endorsements
for collection or deposit in the ordinary course of business.
"Guarantee Obligation Release Date" has the meaning assigned to
such term in Section 8.09(c).
"Guarantee Obligation Termination Date" has the meaning assigned
to such term in Section 8.09(b).
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon
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gas, infectious or medical wastes and all other hazardous substances or wastes
of any nature regulated as such pursuant to any applicable Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"IBSS Agreement" means the Master Agreement executed on or about
December 16, 1996 between the Company (as transferee of Iridium LLC) and
▇▇▇▇▇▇▇▇ Consulting, LLP, with respect to the Iridium Business Support System.
"Impair" has a meaning correlative to the term "Impairment."
"Impairment" means, with respect to any Project Document or
Government Approval, any rescission, termination, cancellation, repeal,
invalidity, suspension (other than by reason of an "excusable delay" (as such
term is used in any of the Principal Project Documents) to the extent such
suspension by reason of such excusable delay is expressly permitted by such
Principal Project Document), withdrawal, withholding, injunction, inability to
satisfy stated conditions to effectiveness or amendment, modification or
supplementation (other than, in the case of a Project Document, any such
amendment, modification or supplementation permitted by Section 8.04 or 8.05
and, in the case of a Government Approval, any such amendment, modification or
supplementation permitted by Section 6.05 and, in the case of the FCC License,
the transfer thereof to a Subsidiary of Motorola or to the Company as
contemplated in the Motorola Consent) of such Project Document or Government
Approval in whole or in part, which (in any case) is adverse to the interests of
any Transaction Party or the Lenders.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
under conditional sale or other title retention agreements relating to property
acquired by such Person, (d) all obligations of such Person in respect of the
deferred purchase price of property or services (excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business that
are not overdue by more than 30 days or that are being contested in good faith),
including without limitation any Motorola Vendor Financing, (e) all Indebtedness
of others secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on property
owned or acquired by such Person, whether or not the Indebtedness secured
thereby has been assumed, (f) all Guarantees by such Person of Indebtedness of
others, (g) all Capital Lease Obligations of such Person, (h) all obligations,
contingent or otherwise, of such Person as an account party in respect of
letters of credit and letters of guaranty (excluding any ordinary trade credit),
(i) all obligations, contingent or otherwise, of such Person in respect of
bankers' acceptances and (j) all obligations, contingent or otherwise, of such
Person to redeem mandatorily redeemable preferred stock. The Indebtedness of any
Person shall include, without duplication, the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
Indebtedness shall refer to the principal amount thereof or, in the case of
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Indebtedness issued at a discount, the accreted value thereof. In no event shall
Indebtedness include any deposit, advance or similar arrangement in connection
with the Iridium clearinghouse function (as described in Article IV of the
Gateway Authorization Agreements).
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Information Memorandum" means the Confidential Information
Memorandum dated November 1998 with respect to the credit facilities provided
for in this Agreement.
"Initial Approved Budget" means the budget for Costs for the
fiscal quarter ending March 31, 1999, approved on October 21, 1998 by the
Company's board of directors.
"Intellectual Property" means patents, patent rights, patent
applications, licenses, inventions, know-how, copyrights, trademarks, trademark
registrations, service marks, service ▇▇▇▇ registrations, trade names or other
intellectual property, including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures, but
excluding any Government Approvals.
"Interest Coverage Ratio" means, as at any date, the ratio of (a)
Annualized Adjusted EBITDA to (b) Annualized Interest Expense.
"Interest Election Request" means a request by the Company to
convert or continue a Borrowing in accordance with Section 2.05.
"Interest Expense" means, for any period, for the Company and its
Subsidiaries, determined on a consolidated basis, without duplication, in
accordance with GAAP, the sum of (a) all interest in respect of Indebtedness
accrued or capitalized during such period (including the interest component of
any payments in respect of Capital Lease Obligations, but excluding any interest
not required to be paid in cash) plus (b) the net amount payable (or minus the
net amount receivable) under any interest rate Hedging Agreements during such
period (whether or not actually paid or received during such period).
"Interest Payment Date" means (a) with respect to any ABR Loan,
each Quarterly Date and (b) with respect to any Eurodollar Loan, the last day of
the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurodollar Borrowing with an Interest Period of more than
three months' duration, each day prior to the last day of such Interest Period
that occurs at intervals of three months' duration after the first day of such
Interest Period.
"Interest Period" means, with respect to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three, six
or (with the consent of all Lenders) nine or twelve months thereafter, as the
Company may elect; provided that (i) if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period that commences on the
last Business Day of a calendar month (or on a day for
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which there is no numerically corresponding day in the last calendar month of
such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and thereafter shall
be the effective date of the most recent conversion or continuation of such
Borrowing.
"Investment" means, for any Person, (a) the acquisition (whether
for cash, property, services or securities) of capital stock, bonds, notes,
debentures, partnership or other ownership interests or other securities of any
other Person or any agreement to make any such acquisition (including, without
limitation, any "short sale" or any sale of any securities at a time when such
securities are not owned by the Person entering into such sale), (b) the making
of any deposit with, or advance, loan or other extension of credit to, any other
Person (including the purchase of property from another Person subject to an
understanding or agreement, contingent or otherwise, to resell such property to
such Person), but excluding any such advance, loan or extension of credit having
a term not exceeding 180 days arising in connection with the sale of inventory,
supplies or services by such Person in the ordinary course of business, (c) the
entering into of any Guarantee of, or other contingent obligation with respect
to, Indebtedness or other liability of any other Person and (without
duplication) any amount committed to be advanced, lent or extended to such
Person and (d) the entering into of any Hedging Agreement.
"Iridium Business" means the designing, development, acquisition,
construction, manufacture, installation, leasing, licensing, testing,
completion, delivery, acceptance, activation, operation, maintenance,
restoration, improvement, use and ownership of the Iridium System, the providing
of services in connection with the Iridium System, the financing thereof
(whether through the issuance of debt or equity securities or otherwise) and all
systems, property, businesses, activities and services of the Company and its
Subsidiaries related thereto or to any Related Business.
"Iridium Capital" means Iridium Capital Corporation, a Delaware
corporation.
"Iridium LLC" means Iridium LLC, a Delaware limited liability
company.
"Iridium LLC Agreement" means the Limited Liability Company
Agreement of Iridium LLC dated as of July 29, 1996, pursuant to which Iridium
LLC is organized.
"Iridium LLC Members" means each of the holders from time to time
of membership interests of Iridium LLC.
"Iridium System" means the IRIDIUM(R) global wireless
communications system described in the Information Memorandum.
"IWCL" means Iridium World Communications Ltd., a Bermuda company.
"Kyocera" means Kyocera Corporation, a Japanese corporation.
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"Lenders" means the Persons listed on Schedule I and any
other Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for
any Interest Period, the rate appearing on Page 3750 of the Telerate Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to Dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for Dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the LIBO Rate with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which Dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"License Subsidiary" means any Subsidiary of the Company
established for the purpose of holding a Telecommunications Approval pursuant to
Section 6.12(a).
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset and (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset.
"LLC Agreements" means the Company LLC Agreement and the Iridium
LLC Agreement.
"Loans" means the loans made by the Lenders to the Company
pursuant to this Agreement.
"Loss Proceeds" means, with respect to any Event of Loss,
insurance proceeds, condemnation awards (including, without limitation,
Condemnation Proceeds) or other compensation, awards, damages and other payments
or relief (exclusive, in each case, of the proceeds of liability insurance and
business interruption insurance and other payments for interruption of
operations) with respect to any Event of Loss.
"Management Services Agreement" means the Amended and Restated
Management Services Agreement dated as of December 18, 1997 among, Iridium World
Communications Ltd., Iridium LLC and the Company with respect to the provision
of management, personnel and administrative services by Iridium LLC to the
Company.
"Margin Stock" means "margin stock" within the meaning of
Regulations T, U and X of the Board.
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"Material Adverse Effect" means a material adverse effect on (a)
the business, operations, assets, condition (financial or otherwise) or
prospects of the Company and any of its Subsidiaries taken as a whole, (b) the
ability of the Credit Parties (taken as a whole) to perform their respective
obligations under any Credit Document to which any of them is a party, (c) the
validity or enforceability of the Liens under any Security Document or on the
Collateral thereunder or the validity or enforceability of the Credit Documents,
(d) the ability of Motorola to perform its obligations under any Motorola
Agreement or Principal Project Document to which it is a party or (e) the
operation of the Iridium System.
"Maturity Date" means December 29, 2000.
"Memorandum of Understanding" means the Second Amended and
Restated Memorandum of Understanding dated as of December 23, 1998 among
Motorola, Iridium LLC and the Company, amending and restating the Amended and
Restated Memorandum of Understanding dated as of May 11, 1998 among Motorola,
Iridium LLC and the Company, amending and restating the Memorandum of
Understanding dated as of July 11, 1997 between Motorola and Iridium LLC.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. (or any successor
to the rating business thereof).
"Mortgaged Properties" has the meaning assigned to such term in
Section 6.10.
"Mortgages" means, collectively, one or more instruments of
mortgages, deeds of trust or similar instruments in favor of the Collateral
Agent (and/or one or more trustees or other Persons designated therein), in form
and substance satisfactory to the Administrative Agent, executed and delivered
by the Company or one of its Subsidiaries pursuant to Article IV or Section
6.10.
"Motorola" means Motorola, Inc., a Delaware corporation.
"Motorola Agreements" means, collectively, the Motorola Consent,
the Motorola Pledge Agreement and the Motorola Guarantee (if any).
"Motorola Consent" means the Consent and Agreement substantially
in the form of Exhibit G between Motorola, the Company, the Administrative Agent
and the Collateral Agent.
"Motorola Default" means any Event of Default under Section 9.02.
"Motorola Domestic Subsidiary" means any Subsidiary of Motorola,
except any such Subsidiary (a) that neither transacts any substantial business
nor regularly maintains any substantial portion of its fixed assets within the
United States of America or (b) which is engaged primarily in financing
operations of Motorola or its Subsidiaries outside the United States of America.
"Motorola Guarantee" has the meaning assigned to such term in
Section 8.09(a).
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"Motorola Guarantee Obligation" means the obligation of Motorola
contained in (and subject to the terms and conditions of) the Memorandum of
Understanding to provide an additional guarantee or guarantees in a maximum
amount of $350,000,000 (inclusive of principal, interest and other amounts) in
respect of borrowings of the Company.
"Motorola Guaranteed Credit Agreement" means the Senior Guaranteed
Credit Agreement dated as of the date hereof between the Company, the lenders
party thereto, Chase Securities Inc. and Barclays Capital, as global lead
arrangers in connection therewith, Chase as the administrative agent and
Barclays Capital as the documentation agent thereunder, providing for loans in
an aggregate original principal amount not exceeding $750,000,000 as of the date
hereof.
"Motorola Pledge Agreement" means the Pledge Agreement
substantially in the form of Exhibit H between Motorola and the Collateral
Agent.
"Motorola's Net Worth" has the meaning assigned to such term in
clause (g) of Section 9.02.
"Motorola Obligations" means (a) the Company's financial
obligations in respect of any and all claims and rights by Motorola against the
Company arising as a result of Motorola's performance of its obligations under
any guarantee issued by Motorola in respect of Indebtedness of the Company
(including, without limitation, (i) the Guarantee Agreement executed and
delivered by Motorola in connection with the Motorola Guaranteed Credit
Agreement, (ii) the Motorola Guarantee and (iii) any other guarantee issued by
Motorola in respect of any Indebtedness permitted under Section 7.01(c) or (d)),
whether by subrogation, contribution, reimbursement or otherwise, and including,
without limitation, any and all monetary obligations owing by the Company in
respect of any of the foregoing under the MOU Agreements (but excluding, for
avoidance of doubt, the obligations under the Agreement Regarding Guarantee
relating to compensation in the form of equity interests of Iridium LLC or IWCL
or warrants therefor), and (b) any and all obligations owing by the Company to
Motorola in respect of any Motorola Vendor Financing.
"Motorola Vendor Financing" means (a) the Deferred O&M Amounts,
(b) the FOC Payments (as defined in the Memorandum of Understanding) to the
extent that a deferral thereof is made pursuant to Section 8 thereof and (c) any
other deferral of payment or other financing for more than 120 days provided by
Motorola or any of its Subsidiaries after the Closing Date to the Company or any
of its Subsidiaries in respect of any goods, property or services provided under
any Principal Project Document.
"MOU Agreements" means the Memorandum of Understanding and the
Agreement Regarding Guarantee.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Available Proceeds" means:
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(a) in the case of any Disposition, the amount of Net Cash
Payments received by the Company and its Subsidiaries in connection with
such Disposition;
(b) in the case of any Event of Loss, the aggregate amount of the
Loss Proceeds received by the Company and its Subsidiaries in respect of
such Event of Loss, net of reasonable expenses incurred by the Company
and its Subsidiaries in connection therewith;
(c) in the case of any Equity Issuance, the aggregate amount of
all cash received by the Company and its Subsidiaries in respect of such
Equity Issuance, net of reasonable expenses incurred by the Company and
its Subsidiaries in connection therewith;
(d) in the case of any Debt Incurrence, the aggregate amount of
all cash received by the Company and its Subsidiaries in respect of such
Debt Incurrence, net of reasonable expenses incurred by the Company and
its Subsidiaries in connection therewith; and
(e) in the case of any Project Document Claim, the aggregate
amount of all cash received by the Company and its Subsidiaries in
respect of such Project Document Claim, net of reasonable expenses
incurred by the Company and its Subsidiaries in connection with the
collection thereof.
"Net Cash Payments" means, with respect to any Disposition, the
aggregate amount of all cash payments received by the Company and its
Subsidiaries directly or indirectly in connection with such Disposition (or
thereafter received in respect of any non-cash consideration paid to the Company
or any of its Subsidiaries in connection with such Disposition); provided that
Net Cash Payments shall be net of (a) the amount of any legal, title and
recording tax expenses, commissions and other fees and expenses paid or payable
by the Company and its Subsidiaries in connection with such Disposition and (b)
any repayments (and any reasonable expenses in connection therewith) by the
Company or any of its Subsidiaries of Indebtedness to the extent that (i) such
Indebtedness is secured by a Lien on the property that is the subject of such
Disposition and (ii) the transferee of (or holder of a Lien on) such property
requires that such Indebtedness be repaid as a condition to the purchase of such
property.
"O&M Contract" means the Operations and Maintenance Contract,
effective July 29, 1993, between Motorola and the Company (as transferee of
Iridium LLC).
"Operation and Maintenance Expenses" means, for any period, the
sum, computed without duplication, of the following: all (a) expenses of
administering and operating the Iridium Business and of maintaining it in good
repair and operating condition payable during such period plus (b) direct
operating and maintenance costs of the Iridium Business (including, without
limitation, all payments due and payable under the O&M Contract, the Terrestrial
Network Development Contract and other relevant Project Documents) payable
during such period, plus (c) insurance costs of the Company and its Subsidiaries
during such period, plus (d) property taxes due and payable by the Company and
its Subsidiaries during such period, plus (e) sales, use and excise taxes, value
added taxes, taxes on telecommunications services and other similar taxes due
and payable by the Company and its Subsidiaries during such period, plus (f)
franchise taxes due and payable by the Company and its Subsidiaries during such
period, plus
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(g) income Taxes due and payable by the Company and its Subsidiaries during such
period, plus (h) costs and fees incurred by the Company and its Subsidiaries in
connection with obtaining and maintaining in effect the Government Approvals
during such period, plus (i) legal, accounting, engineering and other
professional fees incurred in connection with any of the foregoing items during
such period, plus (j) marketing and sales expenses (including associated
commissions) of the Company and its Subsidiaries during such period, plus (k)
general and administrative expenses of the Company and its Subsidiaries for such
period, plus (l) all fees payable to the Agents, the Global Lead Arrangers or
the Lenders or any of their respective Affiliates hereunder or in connection
with the transactions contemplated hereby during such period, plus (m) Capital
Expenditures during such period, plus (n) all payments due and payable by the
Company to Iridium LLC under the Management Services Agreement.
"Other Project Document" means any contract or other written
agreement (other than the Credit Documents and the Principal Project Documents)
entered into or assumed by the Company or any of its Subsidiaries with respect
to the Iridium Business, including, without limitation, the Management Services
Agreement.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made under any Credit Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Credit
Document.
"Parent Security Agreement" means a Pledge and Security Agreement
substantially in the form of Exhibit C between Iridium LLC and the
Administrative Agent.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Permitted Investments" means:
(a) direct obligations of, or obligations guaranteed by, the
United States of America for the payment of which obligations or
guarantee the full faith and credit of the United States of America is
pledged and which have a remaining Average Life of not more than 365 days
from the date of acquisition thereof;
(b) investments in commercial paper maturing not more than 270
days after the date of acquisition thereof and having, at such date of
acquisition, a credit rating of at least P-1 from S&P or A-1 from Moody's
(or such similar equivalent rating by at least one "nationally recognized
statistical rating organization" (as defined in Rule 436 under the
Securities Act of 1933, as amended));
(c) investments in certificates of deposit, banker's acceptances
and time deposits maturing not more than 270 days after the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any commercial bank or
trust company organized under the laws of the United States of America or
any State thereof or any other country which is a member of the
Organization for Economic Cooperation and Development, in each case which
has a combined capital,
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surplus and undivided profits of not less than $500,000,000 or its
equivalent in foreign currency, and whose debt is rated at least
A- by S&P or A-3 by Moody's (or such similar equivalent rating by
a "nationally recognized statistical rating organization" (as
defined above));
(d) repurchase obligations with a term of not more than 7
days for securities described in clause (a) of this definition and
entered into with a financial institution which has a combined
capital, surplus and undivided profits of not less than
$500,000,000 or its equivalent in foreign currency, and whose debt
is rated at least A- by S&P or A-3 by Moody's (or such similar
equivalent rating by a "nationally recognized statistical rating
organization" (as defined above)); and
(e) any mutual or similar fund investing exclusively in
Permitted Investments of the type described in clauses (a), (b),
(c) and/or (d) above.
"Permitted Liens" means:
(a) Liens created pursuant to the Security Documents;
(b) until (and including) the Closing Date, Liens created
pursuant to the Existing Secured Credit Agreement and the security
documents referred to therein;
(c) Liens imposed by any Government Authority for taxes,
assessments or charges not yet due or that are being contested in
good faith and by appropriate proceedings if, in the opinion of
the Company, adequate reserves with respect thereto are maintained
on the books of the Company or the affected Subsidiary, as the
case may be, in accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, landlords' or other like Liens arising in the
ordinary course of business that are not overdue for a period of
more than 30 days or that are being contested in good faith and by
appropriate proceedings;
(e) Liens securing judgments but only to the extent for an
amount and for a period not resulting in an Event of Default;
(f) pledges or deposits under worker's compensation,
unemployment insurance and other social security legislation;
(g) deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases, utilities,
statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature incurred in the ordinary
course of business;
(h) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business
and encumbrances consisting of zoning restrictions, easements,
licenses, restrictions on the use of property or minor defects,
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irregularities or imperfections in title, and encumbrances and
statutory Liens, that, in the aggregate, are not material in
amount, and that do not in any case materially detract from the
value of the property subject thereto or interfere with the
ordinary conduct of the business of the Company and its
Subsidiaries;
(i) Liens in favor of any Government Authority to secure
progress, advance or other payments, or pursuant to any contract,
license, permit or provision of any statute;
(j) bankers' Liens arising out of or with respect to the
credit balance maintained by the Company in one or more deposit
accounts;
(k) Liens on Property to secure the payment of all or any
part of the purchase price or construction cost thereof or to
secure any Indebtedness incurred prior to, at the time of, or
within 180 days after, the acquisition of such Property, the
completion of any construction or the commencement of full
operation, for the purpose of financing all or any part of the
purchase price or construction cost thereof, provided that such
Lien shall not apply to any other property or asset of the Company
or its Subsidiaries;
(l) any Lien on any property or asset of the Company or any
of its Subsidiaries existing on the date hereof and set forth in
Schedule VI; provided that (i) such Lien shall not apply to any
other property or asset of the Company or any of its Subsidiaries
and (ii) such Lien shall secure only those obligations which it
secures on the date hereof (and any Refinancing of such
obligations provided the amount secured by such Lien shall not
exceed the amount of such obligations being Refinanced);
(m) Liens in connection with any Capital Lease Obligation
permitted under Section 7.01(i); and
(n) Liens arising in connection with the Iridium
clearinghouse function (as described in Article IV of the Gateway
Authorization Agreements).
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Government
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the U.S. Tax Code or Section 302 of ERISA, and in respect of which the
Company or any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Post-Default Rate" has the meaning assigned to such term in
Section 2.11(c).
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by Chase as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
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"Principal Project Documents" means (a) the Space System Contract,
(b) the O&M Contract, (c) the Terrestrial Network Development Contract, (d) all
Gateway Authorization Agreements and (e) the IBSS Agreement.
"Project Document Claim" means any payment by any Transaction
Party (other than the Company or any of its Subsidiaries) to the Company or any
of its Subsidiaries under any Principal Project Document in respect of
liquidated damages, warranty payments, indemnity payments or other similar
amounts.
"Project Documents" means the Principal Project Documents and the
Other Project Documents.
"Quarterly Dates" means the last day of March, June, September and
December in each year (or, if any such day is not a Business Day, the
immediately preceding Business Day), the first of which shall be the first such
day after the date hereof.
"Real Estate Subsidiary" means any Subsidiary of the Company
established for the purpose of holding title to or a leasehold interest in real
property (including fixtures thereon) pursuant to Section 6.12(b).
"Refinance" means, with respect to any Indebtedness, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue
Indebtedness in exchange or replacement for such Indebtedness.
"Refinanced" has a meaning correlative to the term "Refinance."
"Refinancing" has a meaning correlative to the term "Refinance."
"Register" has the meaning set forth in Section 11.04(c).
"Related Business" means the business of developing, owning,
engaging in and dealing with all or any part of the business of the provision of
telecommunications services and businesses and (a) reasonably related extensions
thereof, including but not limited to the manufacture, purchase, ownership,
operation, leasing, licensing, financing and selling of, and generally dealing
in or with, communications satellites, earth stations, gateways, ground
infrastructure and subscriber equipment, used or intended for use with
telecommunications services and businesses and (b) any other activities that are
reasonably related to the provision of telecommunications services and
businesses.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Release" means, with respect to any Hazardous Material, any
release, spill, emission, emanation, leaking, pumping, injection, deposit,
disposal, discharge, dispersal, leaching or migration of such Hazardous Material
into the indoor or outdoor environment,
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including, without limitation, the movement of such Hazardous Material through
ambient air, soil, surface water, ground water, wetlands, land or subsurface
strata.
"Required Lenders" means, at any time, Lenders having Exposures
representing more than 50% of the sum of the total Exposures at such time.
"Reserve Capital Call Obligations" means the obligations of 17 of
the Iridium LLC Members to purchase up to 18,206,550 of additional Class 1
Interests of Iridium LLC at a price of $13.33 per interest pursuant to Section
4.02 of the Iridium LLC Agreement.
"Responsible Officer" means, with respect to the Company, its
chief executive officer, chief financial officeror general counsel or any senior
vice president of the Company or, with respect to any Borrowing Request and
Sections 2.09(a), 2.09(e), 5.02 and 8.01(d), any vice president of the Company.
"Restoration" has a meaning correlative to the term "Restore."
"Restore" means, with respect to any Affected Property, to
rebuild, repair, restore or replace such Affected Property.
"Restricted Payment" means distributions of the Company (in cash,
property or obligations) on, or other payments on account of, or the setting
apart of money for a sinking or other analogous fund for, or the purchase,
redemption, retirement or other acquisition of, any portion of any membership or
other equity interest in the Company or of any warrants, options or other rights
to acquire any such membership or equity interest (or to make any payments to
any Person where the amount thereof is calculated with reference to fair market
or equity value of the Company or any Subsidiary), but excluding any dividend
payable solely in equity interests of the Company.
"S&P" means the Standard & Poor's Ratings Services, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (or any successor to the rating business
thereof).
"SEC" means the Securities and Exchange Commission.
"Second Borrowing Date" has the meaning set forth in Section 2.01.
"Secured Indebtedness" means, as at any date, all Indebtedness of
the Company and its Subsidiaries, on a consolidated basis, that is secured by a
Lien on property of the Company or any of its Subsidiaries, including all
Capital Lease Obligations.
"Secured Parties" means the Agents and the Lenders.
"Security Agreement" means a Pledge and Security Agreement
substantially in the form of Exhibit B between the Company, the Subsidiary
Guarantors and the Collateral Agent.
"Security Documents" means, collectively, the Security Agreement,
the Parent Security Agreement, the Mortgages, the Depositary Agreement, the
Motorola Pledge Agreement,
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the consents and agreements referred to in Section VII of Appendix 1 and all
Uniform Commercial Code financing statements or other filings and/or recordings
required by any thereof to be filed or made, as the case may be, with respect to
the security interests in or Liens on the property created pursuant to any
thereof.
"Senior Note Indentures" means, collectively, the Series A Note
Indenture, the Series B Note Indenture, the Series C Note Indenture and the
Series D Note Indenture.
"Series A Note Indenture" means the Indenture dated as of July 16,
1997 among the Company (as transferee of Iridium LLC), certain of its
Subsidiaries and State Street Bank and Trust Company, as trustee thereunder, in
respect of the Series A Senior Notes.
"Series A Senior Notes" means 13% Senior Notes due 2005, Series A
and Series A/EN issued by Iridium LLC (which has assigned its obligations
thereunder to the Company) and Iridium Capital, as co-obligors, under the Series
A Note Indenture in an aggregate original principal amount of $300,000,000, and
the guarantees thereof pursuant to the Series A Note Indenture.
"Series B Note Indenture" means the Note Indenture dated as of
July 16, 1997 among the Company (as transferee of Iridium LLC), certain of its
Subsidiaries and State Street Bank and Trust Company, as trustee thereunder, in
respect of the Series B Senior Notes.
"Series B Senior Notes" means 14% Senior Notes due 2005,
Series B and Series B/EN issued by Iridium LLC (which has assigned its
obligations thereunder to the Company) and Iridium Capital, as co-obligors,
under the Series B Note Indenture in an aggregate original principal amount of
$500,000,000, and the guarantees thereof pursuant to the Series B Note
Indenture.
"Series C Note Indenture" means the Indenture dated as of October
17, 1997 among the Company (as transferee of Iridium LLC), certain of its
Subsidiaries and State Street Bank and Trust Company, as trustee thereunder, in
respect of the Series C Senior Notes.
"Series C Senior Notes" means 11-1/4% Senior Notes due 2005,
Series C and Series C/EN issued by Iridium LLC (which has assigned its
obligations thereunder to the Company) and Iridium Capital, as co-obligors,
under the Series C Note Indenture in an aggregate original principal amount of
$300,000,000, and the guarantees thereof pursuant to the Series C Note
Indenture.
"Series D Note Indenture" means the Indenture dated as of May 13,
1998 among the Company, certain of its Subsidiaries and State Street Bank and
Trust Company, as trustee thereunder, in respect of the Series D Senior Notes.
"Series D Senior Notes" means 10-7/8% Senior Notes due July 15,
2005, Series D issued by the Company and Iridium Capital, as co-obligors, under
the Series D Note Indenture in an aggregate original principal amount of
$350,000,000, and the guarantees thereof pursuant to the Series D Note
Indenture.
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"SNOC" means the Satellite Network Operations Center for the
Iridium System located in Loudoun County, Virginia.
"Space System Contract" means the Space System Contract, effective
as of July 29, 1993, between the Company (as transferee of Iridium LLC) and
Motorola.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject for eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board). Such reserve percentages shall
include those imposed pursuant to such Regulation D. Eurodollar Loans shall be
deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D or
any comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Subsidiary" means, with respect to any Person (the "parent") at
any date, any corporation, limited liability company, partnership, association
or other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent. Unless otherwise
specified, "Subsidiary" means a subsidiary of the Company. Notwithstanding the
foregoing, in no event shall the Company be a Subsidiary of Motorola.
"Subsidiary Guarantee Agreement" means a Subsidiary Guarantee
Agreement substantially in the form of Exhibit D between one or more Subsidiary
Guarantors and the Administrative Agent.
"Subsidiary Guarantee Assumption Agreement" means a Guarantee
Assumption Agreement substantially in the form of Exhibit E by an entity that,
pursuant to Section 6.11, is required to become a "Subsidiary Guarantor"
hereunder in favor of the Administrative Agent.
"Subsidiary Guarantor" means, as of the date hereof, each
Subsidiary identified in Schedule VII and, thereafter, each other Subsidiary
which becomes a Subsidiary Guarantor in accordance with Section 6.11.
"Taxes" means, with respect to any Person, all taxes,
withholdings, assessments, imposts, duties, governmental fees, governmental
charges or levies imposed directly or indirectly on such Person or its income,
profits or property by any Government Authority.
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"Telecommunications Approvals" means all Government Approvals of
any applicable telecommunications authority (including all local and national
telecommunications approvals and licenses, including FCC licenses, and
compliance with International Telecommunication Union procedures and
requirements) relating to the Iridium Business, including, without limitation,
for spectrum allocation, Ka-band, L-band, interconnection, type approval,
trans-border roaming and other business operations of the Company and its
Subsidiaries.
"Terrestrial Network Development Contract" means the Terrestrial
Network Development Contract, effective January 1, 1993, between the Company (as
transferee of Iridium LLC) and Motorola.
"Total Indebtedness" means all Indebtedness of the Company and its
Subsidiaries on a consolidated basis (without duplication).
"Total Invested Capital" means, as at any date of determination,
the sum of (a) Total Indebtedness as of such date and (b) $1,983,000,000 plus
the aggregate proceeds received by the Company or its Subsidiaries in respect of
any Equity Issuance, including the fair value of property other than cash (as
determined in good faith by the board of directors of the Company in a
resolution delivered to the Administrative Agent), minus any redemptions of, or
dividends or other distributions on, the membership interests of the Company
(other than (i) any Restricted Payments referred to in Section 7.07(a) or (ii)
any dividend or distribution in membership interests of the Company) made after
the Closing Date and on or prior to the date of determination.
"Total Satellite Subscribers" means, as at any date of
determination, the total number of "8816" and "8817" numbers that have been
issued to subscribers to any of the Iridium voice services (excluding paging).
"Total Subscribers" means, as at any date of determination, the
total subscribers to any of the Iridium services.
"Transaction Documents" means the Credit Documents, the Project
Documents and the LLC Agreements.
"Transaction Party" means each Person (other than a Secured Party)
from time to time party to a Transaction Document.
Trigger Event" means the occurrence of any of the following
events, if any such event occurs prior to the earlier of the Guarantee
Obligation Termination Date or the Guarantee Obligation Release Date: (a) any
Event of Default; (b) failure by the Company to receive at least $150,000,000
(less reasonable underwriting fees) in cash of aggregate proceeds of Equity
Issuances (other than resulting from the exercise of the Reserve Capital Call
Obligations) after the Closing Date and prior to February 28, 1999; or (c)
failure of Cumulative Adjusted Accrued Revenues as at the last day of any month
specified below to be in an aggregate amount of at least the amount set forth
opposite such month below:
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Minimum Cumulative
-------------------------
Month (1999) Adjusted Accrued Revenues
----- -------------------------
February $25,000,000
March 45,000,000
April 75,000,000
May 115,000,000
June 200,000,000
July 300,000,000
August 425,000,000
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"U.S. Bankruptcy Code" means the United States Federal Bankruptcy
Code of 1978, as amended from time to time.
"U.S. Tax Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Use" means, with respect to any Hazardous Material and with
respect to any Person, the generation, manufacture, processing, distribution,
handling, use, treatment, recycling or storage of such Hazardous Material or
transportation to or from the property of such Person of such Hazardous
Material.
"Wholly Owned Subsidiary" means, with respect to any Person, any
Subsidiary all of the capital stock or other equity interests of which are owned
by such Person (other than, in the case of a corporation, directors' qualifying
shares and shares or equity interests required to be held by foreign nationals,
in each case to the extent mandated by applicable law).
"Withdrawal Liability" means liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Working Capital" means, for any Person, Current Assets (other
than cash and cash equivalents) minus Current Liabilities (other than the
current portion of long-term Indebtedness).
SECTION 1.02. Classification of Loans and Borrowings. For purposes
of this Agreement, Loans may be classified and referred to by Type (e.g., a
"Eurodollar Loan" or an "ABR Loan"). Borrowings also may be classified and
referred to by Type (e.g., a "Eurodollar Borrowing" or an "ABR Borrowing").
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SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified, including an amendment
and restatement thereof, but subject to any restrictions on such amendments,
supplements or modifications set forth herein, (b) any reference herein to any
Person shall be construed to include such Person's successors and assigns or, in
the case of any Government Authority, any entity succeeding to any or all of the
functions of such Government Authority, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Company notifies the Administrative Agent that the Company requests
an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Company
that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments. Subject to the satisfaction of the
conditions precedent set forth in Article IV, the Company agrees to request, and
each Lender agrees to make, a Loan or Loans in an aggregate amount equal to such
Lender's Commitment, comprising one ABR Borrowing on the Closing Date in an
aggregate principal amount (among all Lenders) not less than $500,000,000 and
one ABR or Eurodollar Borrowing on a date (the "Second Borrowing Date") selected
by the Company and occurring on or prior to the Commitment Termination Date in
an aggregate principal amount (among all Lenders) equal to the unused amount of
the total Commitments (if any). The Company shall notify each Lender of the
Second Borrowing Date by delivering a Borrowing Request to the Administrative
Agent in accordance with Section 2.03. Amounts prepaid in respect of Loans may
not be reborrowed.
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SECTION 2.02. Loans and Borrowings.
(a) Each Loan shall be made as part of a Borrowing consisting of
Loans of the same Type made by the applicable Lenders ratably in accordance with
their respective Commitments. The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments of the Lenders are several and no
Lender shall be responsible for any other Lender's failure to make Loans as
required.
(b) Subject to Section 2.12, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Company may request in
accordance herewith. Each Lender at its option may make any Eurodollar Loan by
causing any domestic or foreign branch or affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation
of the Company to repay such Loan or any additional amount with respect thereto
in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate principal amount of
$10,000,000 or a larger multiple of $1,000,000. At the time that each ABR
Borrowing is made, such Borrowing shall be in an aggregate principal amount
equal to $10,000,000 or a larger multiple of $1,000,000; provided that an ABR
Borrowing may be in an aggregate principal amount that is equal to the entire
unused amount of the total Commitments. Borrowings of more than one Type may be
outstanding at the same time; provided that there shall not at any time be more
than a total of twelve Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Company shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03. Requests for Borrowings. To request a Borrowing, the
Company shall notify the Administrative Agent of such request by telephone (a)
in the case of a Eurodollar Borrowing, not later than 10:00 a.m., New York City
time, three Business Days before the date of the proposed Borrowing or (b) in
the case of an ABR Borrowing, not later than 10:00 a.m., New York City time, the
date of the proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request signed by a Responsible
Officer. Each such telephonic and written Borrowing Request shall specify the
following information in compliance with Section 2.02:
(i) the aggregate principal amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
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(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by the
definition of the term "Interest Period".
If no election as to the Type of Borrowing is specified, then the
requested Borrowing shall be an ABR Borrowing. If no Interest Period is
specified with respect to any requested Eurodollar Borrowing, then the Company
shall be deemed to have selected an Interest Period of one month's duration.
Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender and the Collateral
Agent of the details thereof and of the amount of such Lender's Loan to be made
as part of the requested Borrowing.
SECTION 2.04. Funding of Borrowings.
(a) Each Lender shall make each Loan to be made by it hereunder on
the proposed date thereof by wire transfer of immediately available funds by
12:00 noon, New York City time, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders. The
Administrative Agent will make such Loans available to the Company by promptly
crediting the amounts so received, in like funds, to the General Receipt &
Disbursement Account.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Company a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Company severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Company to but excluding the date of payment to the Administrative Agent, at (i)
in the case of such Lender, the Federal Funds Effective Rate or (ii) in the case
of the Company, the interest rate applicable to ABR Loans. If such Lender pays
such amount to the Administrative Agent, then such amount shall constitute such
Lender's Loan included in such Borrowing.
SCTION 2.05. Interest Elections
(a) Each Borrowing initially shall be of the Type specified in the
applicable Borrowing Request, and in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Company may elect to convert such Borrowing to a different Type
or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may
elect Interest Periods therefor, all as provided in this Section. The Company
may elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing.
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(b) To make an election pursuant to this Section, the Company
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the Company
were requesting a Borrowing of the Type resulting from such election to be made
on the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by delivery or
telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the Company.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) of this paragraph shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or
a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar
Borrowing but does not specify an Interest Period, then the Company shall be
deemed to have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request,
the Administrative Agent shall advise each Lender of the details thereof and of
such Lender's portion of each resulting Borrowing.
(e) If the Company fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Company, then, so long as an
Event of Default is continuing (i) no outstanding Borrowing may be converted to
or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
SECTION 2.06. Termination of the Commitments. The Commitments
shall terminate at 5:00 p.m., New York City time, on the Commitment Termination
Date.
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SECTION 2.07. Repayment of Loans; Evidence of Debt.
(a) The Company hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Loan of such Lender on the Maturity Date.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Company to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Type thereof and
the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Company to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Company
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Company shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent and the Company.
SECTION 2.08. Optional Prepayment of Loans.
(a) The Company shall have the right at any time and from time to
time to prepay any Borrowing in whole or in part, subject to the requirements of
this Section and provided that each such prepayment that is not a prepayment of
the Loans in whole shall be in an aggregate principal amount not less than
$10,000,000.
(b) Prior to any optional prepayment of Borrowings hereunder, the
Company shall select the Borrowing or Borrowings to be prepaid and shall specify
such selection in the notice of such prepayment pursuant to paragraph (c) of
this Section; provided that each prepayment of Borrowings shall be applied to
prepay any outstanding ABR Borrowings before any Eurodollar Borrowings. If the
Company fails to make a timely selection of the Borrowing or Borrowings to be
prepaid, such prepayment shall be applied, first, to prepay any outstanding ABR
Borrowings and, second, to Eurodollar Borrowings in the order of the remaining
duration of their respective Interest Periods (the Borrowing with the shortest
remaining Interest Period to be prepaid first).
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(c) The Company shall notify the Administrative Agent and the
Collateral Agent by telephone (confirmed by telecopy) of any optional prepayment
hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later
than 10:00 a.m., New York City time, three Business Days before the date of
repayment or (ii) in the case of prepayment of an ABR Borrowing, not later than
10:00 a.m., New York City time, on the date of prepayment. Each such notice
shall be irrevocable and shall specify the prepayment date and the principal
amount of each Borrowing or portion thereof to be prepaid; provided that a
notice of prepayment delivered by the Company pursuant to this Section may state
that such notice is conditioned upon the effectiveness of other credit
facilities or upon the issuance of other Indebtedness, in which case such notice
may thereafter be revoked by the Company (by notice to the Administrative Agent
on or prior to the specified effective date) if such condition is not satisfied.
Promptly following receipt of any such notice relating to a Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of an advance of a Borrowing as provided in Section 2.02.
Each prepayment of a Borrowing shall be applied ratably to the Loans included in
the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to
the extent required by Section 2.11.
SECTION 2.09. Mandatory Prepayments.
(a) Dispositions. Without limiting the obligation of the Company
to obtain the consent of the Required Lenders pursuant to Section 7.04 to any
Disposition not otherwise permitted hereunder, in the event that the Net
Available Proceeds of any Disposition other than any Excluded Disposition (in
this Section 2.09(a), the "Current Disposition"), and of all prior Dispositions
(other than any Excluded Disposition) as to which no prepayment has yet been
made under this paragraph, shall exceed $5,000,000 then, promptly upon the
occurrence of the Current Disposition, the Company will deliver to the
Administrative Agent a statement, certified by a Responsible Officer, in form
and detail reasonably satisfactory to the Administrative Agent, of the amount of
the Net Available Proceeds of the Current Disposition and of all such prior
Dispositions and, within 30 Business Days after the receipt of the Net Available
Proceeds of the Current Disposition, the Company shall prepay the Loans in an
aggregate amount equal to 100% of the Net Available Proceeds of the Current
Disposition and such prior Dispositions in the manner and to the extent
specified in paragraph (g) of this Section.
(b) Equity Issuance.
(i) Within five Business Days after any Equity Issuance resulting
from the exercise of the Reserve Capital Call Obligations, the Company
shall prepay the Loans in an aggregate amount equal to 100% of the Net
Available Proceeds of such Equity Issuance in the manner and to the
extent specified in paragraph (g) of this Section; and
(ii) Within 30 Business Days after any Equity Issuance (other than
any Excluded Equity Issuance or any Equity Issuance resulting from the
exercise of the Reserve Capital Call Obligations), the Company shall
prepay the Loans in an aggregate amount equal to 50% of the Net Available
Proceeds of such Equity Issuance in the manner and to the extent
specified in paragraph (g) of this Section.
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(c) Debt Incurrence. Without limiting the obligation of the
Company to obtain the consent of the Required Lenders pursuant to Section 7.01
to any incurrence of Indebtedness by the Company or any of its Subsidiaries not
otherwise permitted hereunder, within 30 Business Days after any Debt Incurrence
(other than any Excluded Debt Incurrence), the Company shall prepay the Loans in
an aggregate amount equal to 50% of the Net Available Proceeds of such Debt
Incurrence in the manner and to the extent specified in paragraph (g) of this
Section.
(d) Event of Loss. Within 30 Business Days after receipt of the
Net Available Proceeds of an Event of Loss (other than an Event of Loss (i) as
to which the Net Available Proceeds thereof, together with the Net Available
Proceeds of all previous Events of Loss covered by this clause (i) and not
theretofore applied to either a prepayment hereunder or to the Restoration of
the Affected Property, do not exceed $5,000,000 or (ii) as to which, unless an
Event of Default shall have occurred and be continuing, the Company shall have
notified the Collateral Agent pursuant to Section 4.02(b)(ii) of the Depositary
Agreement that it intends to Restore the Affected Property with respect to such
Event of Loss), the Company shall prepay the Loans in an aggregate amount equal
to 100% of the Net Available Proceeds of such Event of Loss and of such previous
Events of Loss in the manner and to the extent specified in paragraph (g) of
this Section.
(e) Project Document Claims. In the event that the Net Available
Proceeds of any Project Document Claim (in this Section 2.09(e), the "Current
Payment"), and of all prior amounts received by the Company in respect of
Project Document Claims as to which no prepayment has been made under this
paragraph, shall exceed $5,000,000 in the aggregate then, promptly upon the
receipt of the Current Payment, the Company will deliver to the Administrative
Agent a statement, certified by a Responsible Officer, in form and detail
reasonably satisfactory to the Administrative Agent, of the aggregate amount of
the Current Payment and of all such prior payments and, within 30 Business Days
after receipt of the Net Available Proceeds of the Current Payment, will prepay
the Loans in an aggregate amount equal to 100% of the Net Available Proceeds of
the Current Payment and such prior payments in the manner and to the extent
specified in paragraph (g) of this Section.
(f) Excess Cash Flow. Not later than the date 60 days after the
end of each of the first three fiscal quarters of the Company and 120 days after
the end of each fiscal year of the Company (commencing with the fiscal quarter
ending on March 31, 1999), the Company shall prepay the Loans, in the manner and
to the extent specified in paragraph (g) of this Section, in an aggregate amount
equal to (i) 50% of Excess Cash Flow for such fiscal quarter minus (ii) the
aggregate amount of optional prepayments of Loans made during such fiscal
quarter pursuant to Section 2.08.
(g) Application. Prepayments described in the foregoing paragraphs
of this Section shall be applied ratably as among the Loans.
(h) Selection of Borrowings to be Prepaid. Prior to any mandatory
prepayment of Borrowings under this Section, the Company shall select the
Borrowing or Borrowings to be prepaid and shall specify such selection in a
notice to the Administrative Agent not less than three Business Days prior to
the date of such prepayment; provided that each prepayment shall be applied to
prepay any outstanding ABR Borrowings before any Eurodollar Borrowings. If the
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Company fails to make a timely selection of the Borrowing or Borrowings to be
prepaid, such prepayment shall be applied, first, to prepay any outstanding ABR
Borrowings and, second, to Eurodollar Borrowings in the order of the remaining
duration of their respective Interest Periods (the Borrowing with the shortest
remaining Interest Period to be prepaid first).
(i) Payment into Accounts. Nothing in this Section shall be deemed
to limit any obligation of the Company or any of its Subsidiaries hereunder or
under the Depositary Agreement to deposit (or cause to be deposited), promptly
upon receipt, the proceeds in respect of any Disposition, Equity Issuance, Debt
Incurrence, Event of Loss or Project Document Claim in the appropriate Account
in accordance with the Depositary Agreement.
(j) Exclusion from Prepayments. Notwithstanding anything herein to
the contrary, (i) the initial $250,000,000 of aggregate Net Available Proceeds
received from Equity Issuances (other than any Excluded Equity Issuance) after
the Closing Date (the "Excluded Initial Equity Proceeds") and (ii) $250,000,000
of aggregate Net Available Proceeds received from additional Equity Issuances
after the Closing Date and/or from the initial Debt Incurrences (other than any
Excluded Debt Incurrence) after the Closing Date shall not be required to be
applied to prepay the Loans under this Section, provided that the proceeds of
such Equity Issuances and Debt Incurrences so excluded are used, or are
committed to be used (and are actually so used within 180 days of such Equity
Issuance or Debt Incurrence), to pay or reimburse Costs. If prior to the receipt
of $250,000,000 of aggregate Net Available Proceeds under clause (ii) above the
Company shall incur Indebtedness that is guaranteed by Motorola pursuant to
Section 7.01(c), the Net Available Proceeds of such Indebtedness received by the
Company shall be counted toward the $250,000,000 exclusion under said clause
(ii) in an amount equal to the lesser of (x) the aggregate principal amount of
such Indebtedness and (y) $250,000,000 minus the sum of the Net Available
Proceeds under clause (ii) received prior to such incurrence (if any).
SECTION 2.10. Fees.
(a) The Company agrees to pay to the Administrative Agent for the
account of each Lender a commitment fee, which shall accrue at a rate per annum
equal to 4.00% on the average daily unused amount of the Commitment of such
Lender during the period from and including the Closing Date to but excluding
the earlier of (i) the date such Commitment terminates and (ii) the Commitment
Termination Date. Accrued commitment fees shall be payable on each Quarterly
Date and on the earlier of the date the Commitment terminates and the Commitment
Termination Date, commencing on the first such date to occur after the date
hereof. All commitment fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).
(b) The Company agrees to pay to each Agent, for its own account,
fees payable in the amounts and at the times separately agreed upon between the
Company and such Agent.
(c) All fees payable hereunder shall be paid on the due date
thereof, in immediately available funds, to the Administrative Agent for
distribution, in the case of commitment fees, to the Lenders entitled thereto.
Fees paid shall not be refundable under any circumstances.
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SECTION 2.11. Interest.
(a) The Loans comprising each ABR Borrowing shall bear interest at
rate per annum equal to the Alternate Base Rate plus the Applicable Margin.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at a rate per annum equal to the Adjusted LIBO Rate for the Interest
Period in effect for such Borrowing plus the Applicable Margin.
(c) Notwithstanding the foregoing, (i) if any principal of any
Loan is not paid when due, whether at stated maturity, upon acceleration, by
mandatory prepayment or otherwise, such overdue amount shall bear interest,
after as well as before judgment, from the due date therefor at a rate per annum
equal to 2% plus the rate otherwise applicable thereto, and (ii) if any interest
on any Loan or any fee or other amount payable by the Company hereunder is not
paid when due, such overdue amount shall bear interest, after as well as before
judgment, from the due date therefor at a rate per annum (the "Post-Default
Rate") equal to 2% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and upon termination of the applicable
Commitments; provided that (i) interest accrued pursuant to paragraph (c) of
this Section shall be payable on demand, (ii) in the event of any prepayment of
any Loan (other than a prepayment of an ABR Loan prior to the Maturity Date),
accrued interest on the principal amount prepaid shall be payable on the date of
such prepayment and (iii) in the event of any conversion of any Eurodollar
Borrowing prior to the end of the current Interest Period therefor, accrued
interest on such Loan shall be payable on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.12. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders
that the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders of making or maintaining their Loans
included in such Borrowing for such Interest Period;
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then the Administrative Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing; provided that if the circumstances
giving rise to such notice affect only one Type of Borrowings, then the other
Type of Borrowings shall be permitted.
SECTION 2.13. Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such
Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lenders of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to reduce the amount of any sum received or
receivable by such Lender hereunder (whether of principal, interest or
otherwise), then the Company will pay to such Lender such additional amount or
amounts as will compensate such Lender for such additional costs incurred or
reduction suffered.
Without limiting the rights and obligations of the Lenders and the
Company under Section 2.17, if any Lender requests compensation from the Company
under this Section, the Company may, by notice to such Lender (with a copy to
the Administrative Agent), suspend the obligation of such Lender thereafter to
make or continue Eurodollar Loans, or to convert ABR Loans into Eurodollar
Loans, until the Change in Law giving rise to such request ceases to be in
effect; provided that such suspension shall not affect the right of such Lender
to receive the compensation so requested. If the obligation of any Lender to
make Eurodollar Loans or to continue, or to convert ABR Loans into, Eurodollar
Loans shall be suspended pursuant to the preceding sentence, such Lender's
Eurodollar Loans shall be automatically converted into ABR Loans on the last
day(s) of the then current Interest Period(s) for Eurodollar Loans and, unless
and until such Lender gives notice as provided below that the Change in Law is
no longer in effect:
(x) to the extent that such Lender's Eurodollar
Loans have been so converted, all payments and prepayments of
principal that would otherwise be applied to such Lender's
Eurodollar Loans shall be applied instead to its ABR Loans; and
(y) all Loans that would otherwise be made or continued
by such Lender as Eurodollar Loans shall be made or continued
instead as ABR Loans, and all ABR Loans
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of such Lender that would otherwise be converted into Eurodollar
Loans shall remain as ABR Loans.
If such Lender gives notice to the Company with a copy to the Administrative
Agent that the Change in Law that gave rise to the conversion of such Lender's
Eurodollar Loans pursuant to this Section is no longer in effect at a time when
Eurodollar Loans made by other Lenders are outstanding, such Lender's ABR Loans
shall be automatically converted, on the first day(s) of the next succeeding
Interest Period(s) for such outstanding Eurodollar Loans, to the extent
necessary so that, after giving effect thereto, all ABR and Eurodollar Loans are
allocated among the Lenders ratably (as to principal amounts, Types and Interest
Periods) in accordance with their respective Commitments.
(b) If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return
on such Lender's capital or on the capital of such Lender's holding company, if
any, as a consequence of this Agreement or the Loans made by such Lender to a
level below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Company will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall be delivered to the
Company and shall be conclusive absent manifest error. The Company shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; provided that the Company shall not
be required to compensate a Lender pursuant to this Section for any increased
costs or reductions incurred more than six months prior to the date that such
Lender notifies the Company of the Change in Law giving rise to such increased
costs or reductions and of such Lender's intention to claim compensation
therefor; provided, further, that if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the six-month period referred
to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.14. Break Funding Payments. In the event of (a) the
payment or prepayment of any principal of any Eurodollar Loan other than on the
last day of an Interest Period applicable thereto (including as a result of an
Event of Default or in connection with any mandatory prepayment pursuant to
Section 2.09), (b) the conversion of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Eurodollar Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice is permitted
to be revocable under Section 2.08(c) and is revoked in accordance herewith), or
(d) the assignment of any Eurodollar Loan other than on the last day of the
Interest Period applicable thereto as a result of a request by
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the Company pursuant to Section 2.17, then, in any such event, the Company shall
compensate each Lender for the loss (other than lost profit), cost and expense
attributable to such event. In the case of a Eurodollar Loan, the loss to any
Lender attributable to any such event shall be deemed to include an amount
determined by such Lender to be equal to the excess, if any, of (i) the amount
of interest that such Lender would pay for a deposit equal to the principal
amount of such Loan for the period from the date of such payment, conversion,
failure or assignment to the last day of the then current Interest Period for
such Loan (or, in the case of a failure to borrow, convert or continue, the
duration of the Interest Period that would have resulted from such borrowing,
conversion or continuation) if the interest rate payable on such deposit were
equal to the Adjusted LIBO Rate for such Interest Period, over (ii) the amount
of interest that such Lender would earn on such principal amount for such period
if such Lender were to invest such principal amount for such period at the
interest rate that would be bid by such Lender (or, if not so bid by the Lender,
by an affiliate of such Lender) for Dollar deposits from other banks in the
eurodollar market at the commencement of such period. A certificate of any
Lender setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section shall be delivered to the Company and shall be
conclusive absent manifest error. The Company shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.15. Taxes.
(a) Any and all payments by or on account of any obligation of the
Company hereunder or under any other Credit Document shall be made free and
clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided that if the Company shall be required to deduct any Indemnified Taxes
or Other Taxes from such payments, then (i) the sum payable shall be increased
as necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent or Lender (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Company shall
make such deductions and (iii) the Company shall pay the full amount deducted to
the relevant Government Authority in accordance with any applicable Government
Rule.
(b) In addition, the Company shall pay any Other Taxes to the
relevant Government Authority in accordance with any applicable Government Rule.
(c) The Company shall indemnify the Administrative Agent and each
Lender, within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
paid by the Administrative Agent or such Lender, as the case may be, and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Government Authority. A certificate
as to the amount of such payment or liability delivered to the Company by a
Lender, or by the Administrative Agent on its own behalf or on behalf of a
Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes
or Other Taxes by the Company to a Government Authority, the Company shall
deliver to the
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Administrative Agent the original or a certified copy of a
receipt issued by such Government Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Each Foreign Lender shall (i) deliver to the Company and the
Administrative Agent (x) on or before the date on which it becomes a Lender (A)
(1) two properly completed and duly executed copies of United States Internal
Revenue Service Form 1001 or 4224 (or successor applicable form, as the case may
be) claiming complete exemption from United States withholding tax with respect
to payments by the Company under this Agreement and the other Credit Documents
and (2) a duly completed United States Internal Revenue Service Form W-8 or W-9
certifying that such Lender is entitled to an exemption from United States
backup withholding tax or (B), in the case of a Lender not treated as a bank for
regulatory, tax or other legal purposes in any jurisdiction, (1) a certificate
under penalties of perjury that such Lender is not (x) a bank, a shareholder of
the Company or a controlled foreign corporation related to the Company for
purposes of section 881(c)(3) of the Code or (y) a conduit entity within the
meaning of United States Treasury Regulations section 1.881-3 and (2) two duly
completed Internal Revenue Service Forms W-8, and (y) two further copies of any
such form or certification on or before the date that any such form or
certification expires or becomes obsolete and after the occurrence of any event
requiring a change in the most recent form previously delivered; and (ii) obtain
such extensions of time for filing and complete such forms or certifications as
may reasonably be requested by the Company or the Administrative Agent;
provided, however, that the Lender shall not be required to perform the
obligations under this paragraph if any change in treaty, law or regulation has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect to it and
such Lender so advises the Company and the Administrative Agent.
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.
(a) The Company shall make each payment required to be made by it
hereunder (whether of principal, interest or fees, or under Section 2.13, 2.14
or 2.15, or otherwise) or under any other Credit Document (except to the extent
otherwise provided therein) prior to 1:00 p.m., New York City time, on the date
when due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, except as otherwise expressly provided in the relevant Credit
Document, and except that payments pursuant to Sections 2.13, 2.14, 2.15 and
11.03 shall be made directly to the Persons entitled thereto. The Administrative
Agent shall distribute any such payments received by it for the account of any
other Person to the appropriate recipient promptly following receipt thereof. If
any payment hereunder shall be due on a day that is not a Business Day, the date
for payment shall be extended to the next succeeding Business Day and, in the
case of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments hereunder or under any other Credit
Document (except to the extent otherwise provided therein) shall be made in
Dollars.
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(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
interest and fees then due hereunder, such funds shall be applied (i) first, to
pay interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, to pay principal then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of principal then due to
such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans of other Lenders to the extent necessary so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans; provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Company pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to the Company or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Company consents
to the foregoing and agrees, to the extent it may effectively do so under
applicable Government Rule, that any Lender acquiring a participation pursuant
to the foregoing arrangements may exercise against the Company rights of set-off
and counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of the Company in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Company prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that the Company
will not make such payment, the Administrative Agent may assume that the Company
has made such payment on such date in accordance herewith and may, in reliance
upon such assumption, distribute to the Lenders the amount due. In such event,
if the Company has not in fact made such payment, then each of the Lenders
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender with interest thereon, for each day from
and including the date such amount is distributed to it to but excluding the
date of payment to the Administrative Agent, at the Federal Funds Effective
Rate.
(e) If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.04(b) or 2.16(d), then the Administrative Agent
may, in its discretion (notwithstanding any contrary provision hereof), apply
any amounts thereafter received by the Administrative Agent for the account of
such Lender to satisfy such Lender's obligations under such Sections until all
such unsatisfied obligations are fully paid.
SECTION 2.17. Mitigation Obligations; Replacement of Lenders.
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(a) If any Lender requests compensation under Section 2.13, or if
the Company is required to pay any additional amount to any Lender or any
Government Authority for the account of any Lender pursuant to Section 2.15,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.13 or 2.15, as the case may be,
in the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Company
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.13, or if
the Company is required to pay any additional amount to any Lender or any
Government Authority for the account of any Lender pursuant to Section 2.15, or
if any Lender defaults in its obligation to fund Loans hereunder, then the
Company may, at its sole expense, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 11.04), all its interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Company
shall have received the prior written consent of the Administrative Agent, which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Company (in the case of all other amounts) and (iii)
in the case of any such assignment resulting from a claim for compensation under
Section 2.13 or payments required to be made pursuant to Section 2.15, such
assignment will result in a reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Company to require such assignment and delegation cease to apply.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Lenders that:
SECTION 3.01. Organization; Qualification. Each of the Company and
its Subsidiaries is a limited liability company, corporation, partnership or
other entity duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, and is qualified to do business
and is in good standing in all jurisdictions in which the nature of the business
conducted by it makes such qualification necessary and where failure so to
qualify could reasonably be expected (either individually or in the aggregate)
to result in a Material Adverse Effect.
SECTION 3.02. Powers. Each of the Company and its Subsidiaries has
all requisite corporate or other power to own its assets and carry on its
business as now being or as
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proposed to be conducted; provided that no representation or warranty is made
under this Section 3.02 with respect to any Government Approvals.
SECTION 3.03. Authorization. The Company and each of its
Subsidiaries has full power, authority and legal right to execute and deliver
each of the Credit Documents and Principal Project Documents to which it is a
party and to perform its obligations thereunder. The execution, delivery and
performance by the Company and each of its Subsidiaries of each of the Credit
Documents and Principal Project Documents to which it is a party and the
consummation of the transactions contemplated thereby have been duly authorized
by all necessary corporate action on the part of the Company or such Subsidiary.
SECTION 3.04. No Conflicts. The execution, delivery and
performance by the Company and each of its Subsidiaries of the Credit Documents
and Principal Project Documents to which it is a party and the consummation of
the transactions contemplated thereby do not and will not (a) require any
consent or approval of the membership committee or board of directors (as the
case may be) or any shareholders or members of the Company or any of its
Subsidiaries or any other Person that has not been obtained and each such
consent and approval that has been obtained is adequate for its intended purpose
and is in full force and effect, (b) violate any material provision of any
Government Rule or any order, writ, judgment, decree, determination or award
having applicability to the Company or any of its Subsidiaries or the Iridium
Business, (c) violate any provision of the Company LLC Agreement (in the case of
the Company) or the certificate of incorporation or by-laws (or the applicable
constitutive documents) of any of the Company's Subsidiaries, (d) result in a
breach of or constitute a default under any Credit Document or Principal Project
Documents to which it is a party or any material indenture or loan or credit
agreement or any other material agreement or instrument to which the Company or
any of its Subsidiaries is a party or by which it or its properties and assets
is or are bound or affected or (e) result in or require the creation or
imposition of any Lien (other than Permitted Liens) upon or with respect to any
of their respective properties and assets now owned or hereafter acquired.
SECTION 3.05. Enforceability. Each of the Credit Documents (in
each case, from and after the date of execution and delivery thereof by the
parties thereto) and Principal Project Documents to which the Company or any of
its Subsidiaries is a party has been duly executed and delivered by the Company
or such Subsidiary and constitutes the legal, valid and binding obligation of
the Company or such Subsidiary enforceable against the Company or such
Subsidiary in accordance with its terms, except as the enforceability thereof
may be limited by (a) applicable bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other similar laws affecting the enforcement
of creditors' rights generally and (b) the application of general principles of
equity (regardless of whether such enforceability is considered in a proceeding
at law or in equity).
SECTION 3.06. Government Approvals.
(a) All Telecommunications Approvals required to be obtained by
the Company or any of its Subsidiaries for the Iridium Business have been duly
obtained, are validly issued, are in full force and effect, are held in the name
or extend to the benefit of the Company or one of its Subsidiaries and are free
from any conditions or requirements that the Company could not
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reasonably be expected to satisfy on or prior to the date such
Telecommunications Approval is required for the Iridium Business.
(b) To the best knowledge of the Company, all other
Telecommunications Approvals that have been obtained by any Person (other than
the Company or any of its Subsidiaries) for the Iridium Business have been duly
obtained, are validly issued, are in full force and effect, are held in the name
or extend to the benefit of such other Person and are free from any conditions
or requirements that the Company could not reasonably expect such other Person
to satisfy in the ordinary course of the Iridium Business.
(c) All Government Approvals (other than Telecommunications
Approvals) required to be obtained by the Company or any of its Subsidiaries for
the Iridium Business have been duly obtained, are validly issued, are in full
force and effect, are held in the name or extend to the benefit of the Company
or one of its Subsidiaries and are free from any conditions or requirements that
the Company could not reasonably be expected to satisfy on or prior to the date
such Government Approval is required for the Iridium Business.
(d) To the best knowledge of the Company, all other Government
Approvals (other than Telecommunications Approvals) that have been obtained by
any Person (other than the Company or any of its Subsidiaries) for the Iridium
Business have been duly obtained, are validly issued, are in full force and
effect, are held in the name or extend to the benefit of the relevant Person and
are free from any conditions or requirements that the Company could not
reasonably expect such other Person to satisfy in the ordinary course of the
Iridium Business.
(e) The Iridium Business, if operated in accordance with the
requirements of the Principal Project Documents, will in all material respects
conform to and comply with all applicable covenants, conditions, restrictions
and reservations in all Government Approvals required for the Iridium Business
and all Government Rules applicable thereto.
(f) Neither the Company nor any of its Subsidiaries is in
violation of any Government Rule applicable to any of the Credit Parties in
connection with the Iridium Business or any Government Approval required for the
Iridium Business and obtained by any of the Credit Parties, the violation of
which could reasonably be expected to result in a Material Adverse Effect. To
the best knowledge of the Company, no Person (other than the Credit Parties) is
in violation of any Government Rule applicable to it in connection with the
Iridium Business or any Government Approval required for the Iridium Business
and obtained by such Person, the violation of which could reasonably be expected
to result in a Material Adverse Effect.
SECTION 3.07. Financial Condition; No Material Adverse Change.
(a) The Company has heretofore furnished to the Lenders the
consolidated balance sheet and statements of income, stockholders' equity and
cash flows for the Company (i) as of and for the fiscal year ended December 31,
1997, reported on by KPMG Peat Marwick LLP, independent public accountants and
(ii) as of and for the fiscal quarter and the portion of the fiscal year ended
September 30, 1998, certified by the chief financial officer of the Company.
Such financial statements present fairly, in all material respects, the
consolidated financial position and results of operations and cash flows of the
Company and its Subsidiaries as of such
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dates and for such periods in accordance with GAAP, subject to normal year-end
audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above.
(b) Since December 31, 1997, except as disclosed in the
Information Memorandum, there has been no change in the business, assets,
operations, prospects or condition, financial or otherwise, of the Company and
its Subsidiaries, taken as a whole, that (either individually or in the
aggregate) could reasonably be expected to result in a Material Adverse Effect.
SECTION 3.08. Properties.
(a) Each of the Company and its Subsidiaries owns and has, or when
acquired will own and have, good, legal and marketable title to its property
which it purports to own (other than its leasehold or licensed properties) free
and clear of all Liens other than Permitted Liens.
(b) Each of the Company and its Subsidiaries is, or when leases
creating leasehold properties are executed will be, lawfully possessed of a
valid and subsisting leasehold estate in and to its leasehold properties which
it purports to lease free and clear of all Liens other than Permitted Liens.
(c) Each of the Company and its Subsidiaries enjoys, and will
enjoy, peaceful and undisturbed possession of, or a license to use, all property
(subject only to Permitted Liens) that are necessary for the Iridium Business.
(d) Each of the Company and its Subsidiaries owns or possesses, or
is licensed to use (or believes it can acquire on reasonable terms), all
material Intellectual Property necessary for the Iridium Business or (to the
extent not required to be obtained on or prior to the date hereof) will be
obtained in due course when so necessary; licenses, contracts or other
agreements in respect of such Intellectual Property are (or when obtained, will
be) final and are (or will be) in full force and effect; and to the best
knowledge of the Company, the use thereof by the Company and its Subsidiaries
does not infringe upon, or conflict with, the rights of any other Person.
(e) Set forth on Schedule II is a list, as of the date hereof, of
all of the real property interests held, or (to the best knowledge of the
Company) planned to be held, by the Company and its Subsidiaries, indicating in
each case whether the respective property is (or is expected to be) owned or
leased, the identity of the owner or lessee, the location of the respective
property, the approximate value of such property and, in the case of property
not yet owned or leased, the estimated date of acquisition or leasing (if known
to the Company as of the date hereof).
SECTION 3.09. Proceedings. Except as described in Schedule III,
there is no action, suit or proceeding at law or in equity or by or before any
Government Authority, arbitral tribunal or other similar body now pending or, to
the best knowledge of the Company, threatened against the Company or any of its
Subsidiaries or any of their respective property (including,
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without limitation, the Iridium System), which could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.10. Compliance with Laws. Each of the Company and its
Subsidiaries is in compliance with all Government Rules applicable to it or its
property, except for any such non-compliance that could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.11. Environmental Matters. Except as described in
Schedule IV, neither the Company nor any of its Subsidiaries (a) has failed to
comply, in any material respect, with any Environmental Law or to obtain,
maintain or comply, in any material respect, with any permit, license or other
approval required under any Environmental Law or (b) has received notice of any
Environmental Claim that could reasonably be expected to result in liability to
the Company or any of its Subsidiaries in excess of $2,000,000.
Except as set forth in Schedule IV:
(i) there are no facts, circumstances, conditions or
occurrences regarding the Iridium Business that could reasonably
be expected (x) to form the basis of an Environmental Claim
arising with respect to or relating to any property of the Company
or any of its Subsidiaries associated with the Iridium Business,
(y) to cause the Iridium Business (or any property of the Company
or any of its Subsidiaries associated therewith) to be subject to
any restrictions on ownership, occupancy, use or transferability
under any Environmental Law or (z) to require the filing or
recording of any notice, registration, permit or disclosure
documents under any Environmental Law other than routine filings
or recordings;
(ii) there are no past, pending or, to the best knowledge
of the Company, threatened Environmental Claims arising with
respect to or relating to any property of the Company or any of
its Subsidiaries associated with the Iridium Business;
(iii) to the best knowledge of the Company, Hazardous
Materials have not at any time been used or Released at, on, under
or from any property of the Company or any of its Subsidiaries
associated with the Iridium Business in a manner that creates any
risk of any material liability under applicable Environmental Laws
or that otherwise could reasonably be expected to result in a
Material Adverse Effect; and
(iv) there have been no environmental investigations,
studies, audits, assessments, reviews or other analyses conducted
by or which are in the possession of the Company in relation to
any property of the Company or any of its Subsidiaries associated
with the Iridium Business which have not been provided to the
Administrative Agent.
SECTION 3.12. Investment and Holding Company Status. Neither the
Company nor any of its Subsidiaries is (a) an "investment company" or a company
"controlled" by a company registered as an "investment company", as such terms
are defined in the Investment Company Act of 1940 or (b) a "holding company", or
an "affiliate" of a company registered as a
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"holding company" or a "subsidiary company" of a company registered as a
"holding company", within the meaning of the Public Utility Holding Company Act
of 1935.
SECTION 3.13. Taxes. Each of the Company and its Subsidiaries has
filed or caused to be filed all tax returns that are required to be filed, and
has paid all Taxes shown to be due and payable on said returns or on any
assessments made against the Company or any of its Subsidiaries or any of their
respective property (other than Taxes the payment of which is not yet due or
which is being contested in good faith by appropriate proceedings and for which
such Person has set aside on its books adequate reserves), and no tax Liens
(other than Permitted Liens) have been filed and no claims are being asserted
with respect to any such Taxes. The charges, accruals and reserves on the books
of the Company and its Subsidiaries in respect of Taxes and other governmental
charges are, in the opinion of the Company, adequate.
SECTION 3.14. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. As of the date hereof, the Company does not
have any Plans and is not obligated or required to contribute to any Plan or
Multiemployer Plan.
SECTION 3.15. Disclosure. The information, reports, financial
statements, exhibits and schedules (other than projections) furnished in writing
by or on behalf of the Company to any Agent or any Lender in connection with the
negotiation, preparation or delivery of this Agreement and the other Credit
Documents or included herein or therein or delivered pursuant hereto or thereto
(other than projections), when taken as a whole (together with the Information
Memorandum), do not contain any untrue statement of material fact or omit to
state any material fact necessary to make the statements herein or therein, in
light of the circumstances under which they were made (including the time of the
making of such statements), not misleading. The projections, estimates and/or
pro forma financial statements (including, without limitation, the Financial
Projections) furnished by or on behalf of the Company to the Agents or any
Lender in connection with the negotiation, execution and delivery of this
Agreement and the other Credit Documents or included herein or therein or
delivered pursuant hereto or thereto, have been prepared by the Company in good
faith on the basis of information and assumptions that the Company believed to
be reasonable as of the date of such information. All written information
furnished after the date hereof by the Company and its Subsidiaries to the
Agents and the Lenders in connection with this Agreement and the other Credit
Documents and the transactions contemplated hereby and thereby will not contain
any untrue statement of material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, or (in the case of projections, estimates
and pro forma financial statements) will be prepared in good faith on the basis
of information and assumptions believed by the Company to be reasonable as of
the date of such information. There is no fact known to the Company that could
reasonably be expected to result in a Material Adverse Effect that has not been
disclosed herein, in the other Credit Documents, in the Information Memorandum
or in a report, financial statement, exhibit, schedule, disclosure letter or
other writing furnished to the Lenders for use in connection with the
transactions contemplated hereby or thereby. Notwithstanding anything in this
Section to the contrary, no
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representation is made in this Section with respect to Section 4 and Appendix D
of the Information Memorandum.
SECTION 3.16. Use of Credit. Neither the Company nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock, and no part of the proceeds of
any Loan hereunder will be used to buy or carry any Margin Stock and the
proceeds of the Loans hereunder shall be used in accordance with Section 6.09.
SECTION 3.17. Debt Agreements. Schedule V is a complete and
correct list of each credit agreement, loan agreement, indenture, purchase
agreement, guarantee, letter of credit or other arrangement providing for or
otherwise relating to any Indebtedness or any extension of credit (or commitment
for any extension of credit) to, or guarantee by, the Company or any of its
Subsidiaries outstanding on the date hereof, and the aggregate principal amount
outstanding or that may become outstanding under the then current terms of each
such arrangement is as of the date hereof correctly described in Schedule V.
SECTION 3.18. Liens. Schedule VI is a complete and correct list of
each Lien securing Indebtedness of the Company or any of its Subsidiaries
outstanding on the date hereof, and the aggregate Indebtedness secured (or that
may be secured) by each such Lien and the property covered by each such Lien is
as of the date hereof correctly described in Schedule VI.
SECTION 3.19. Capitalization. The Company has heretofore delivered
to the Lenders a true and complete copy of the Company LLC Agreement. The only
member of the Company on the date hereof is Iridium LLC. The membership and
other ownership interests in the Company are legally owned solely by Iridium
LLC, and all such interests have been validly issued and are fully paid-in and
non-assessable (except for the restriction contained in Section 6.07 of the
Delaware LLC Act). The Company does not have outstanding any securities
convertible into or exchangeable for any of its membership interests or other
ownership interests in or any rights to subscribe for or to purchase, or any
warrants or options for the purchase of, or any agreements providing for the
issuance (contingent or otherwise) of, or any calls, commitments or claims of
any character relating to, any such membership interests or other ownership
interests.
SECTION 3.20. Subsidiaries. Schedule VII is a complete and correct
list of all of the Subsidiaries of the Company as of the date hereof, together
with, for each such Subsidiary, (a) the jurisdiction of organization of such
Subsidiary, (b) each Person holding equity interests in such Subsidiary and (c)
the nature of the equity interests held by each such Person and the percentage
of ownership of such Subsidiary represented by such equity interests. Except as
disclosed in Schedule VII, (i) each of the Company and its Subsidiaries owns,
free and clear of Liens, and has the unencumbered right to vote, all outstanding
ownership interests in each Person shown to be held by it in Schedule VII, (ii)
all of such issued and outstanding equity interests are validly issued, fully
paid and nonassessable and (iii) there are no outstanding subscriptions,
options, warrants, commitments, preemptive rights or agreements of any kind
(including, without limitation, any shareholders' or voting trust agreements)
for the issuance, sale, registration or voting of, or securities convertible
into, any additional shares of equity interests of any type in, such Person.
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SECTION 3.21. Investments. Schedule VIII is a complete and correct
list of all Investments (other than Investments disclosed in Schedule VII and
Permitted Investments existing as of the date hereof) held by the Company or any
of its Subsidiaries in any Person on the date hereof and, for each such
Investment, (a) the identity of the Person or Persons holding such Investment
and (b) the nature of such Investment. Except as disclosed in Schedule VIII,
each of the Company and its Subsidiaries owns all such Investments as of the
date hereof, free and clear of all Liens other than Permitted Liens.
SECTION 3.22. Restrictive Agreements. None of the Subsidiaries of
the Company is, on the date hereof, subject to any indenture, agreement,
instrument or other arrangement of the type described in Section 7.09 (other
than as permitted thereunder).
SECTION 3.23. Business. Neither the Company nor any of its
Subsidiaries has conducted any business other than any business associated with
or related to the Iridium Business or any Related Business.
SECTION 3.24. Collateral; Security Interests. As of the Closing
Date and at all times thereafter, the provisions of the Security Documents to
which any Credit Party is a party are effective to create, in favor of the
Collateral Agent for the benefit of the Secured Parties, a legal, valid and
enforceable Lien on and security interest in all of the then existing Collateral
purported to be covered thereby. Except as set forth in the Security Documents,
as of the Closing Date and at all times thereafter, all necessary and
appropriate filings (including filings for the purpose of recording) have been
made in all necessary and appropriate public offices (in the case of such
Collateral consisting of satellites, in accordance with the Security Agreement)
and all other necessary and appropriate action has been taken, so that each such
Security Document creates a perfected Lien on and security interest in all
right, title, estate and interest of the Company or any of its Subsidiaries in
the then existing Collateral covered thereby, free and clear of all Liens (other
than Permitted Liens), and all necessary and appropriate consents to the
creation, perfection and enforcement of such Liens have been obtained from each
of the parties to the Principal Project Documents. No mortgage or financing
statement or other instrument or recordation covering all or any part of the
then existing Collateral purported to be covered by the Security Documents is on
file in any recording office, except such as may have been filed in favor of the
Collateral Agent for the benefit of the Secured Parties or in respect of any
Permitted Lien.
SECTION 3.25. Sufficiency of Project Documents.
(a) The Administrative Agent has received a certified copy of each
Principal Project Document in effect on the date hereof and each amendment,
modification or supplement thereto.
(b) Except as permitted pursuant to, or not prohibited by, Section
8.04 or 8.05, since the date hereof none of the Project Documents has been
amended, modified or supplemented or has been materially Impaired and all of the
Project Documents are in full force and effect (except to the extent any such
Project Document has expired or terminated in accordance with its terms).
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(c) All conditions precedent to the obligations of the respective
parties under the Project Documents have been satisfied or waived except for
such conditions precedent which are not yet required to be satisfied, and the
Company has no reason to believe that any such condition precedent cannot be
satisfied on or prior to the date when required.
(d) No Credit Party is in default in the performance of any
material covenant or obligation set forth in or otherwise in default in any
material respect under any Principal Project Document to which it is a party. No
Credit Party is in default in the performance of any covenant or obligation set
forth in or otherwise in default under any Other Project Document to which it is
a party, the effect of which could reasonably be expected to result in a
Material Adverse Effect.
(e) To the best knowledge of the Company, no Transaction Party
(other than any Credit Party) is in default in the performance of any material
covenant or obligation set forth in or otherwise in default in any material
respect under any Principal Project Document to which it is a party. To the best
knowledge of the Company, no such Transaction Party is in default in the
performance of any covenant or obligation set forth in or is otherwise in
default under any Other Project Document to which it is a party, the effect of
which could reasonably be expected to result in a Material Adverse Effect.
SECTION 3.26. Employee Matters. Except as set forth on Schedule X,
(a) on the date hereof, neither Company nor any of its Subsidiaries nor any of
their respective employees is subject to any collective bargaining agreement,
(b) on the date hereof, no petition for certification or union election is
pending with respect to the employees of the Company or any of its Subsidiaries
and no union or collective bargaining unit has sought such certification or
recognition with respect to the employees of any such Person and (c) there are
no strikes, slowdowns, work stoppages or controversies pending or, to the
knowledge of Company, threatened between the Company or any of its Subsidiaries
and their respective employees relating to the Iridium Business, other than any
thereof which could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.27. Other Transaction Parties.
(a) To the best knowledge of the Company, (i) the execution,
delivery and performance by each Transaction arty (other than the Credit Parties
and Motorola) of each of the Transaction Documents to which it is a party and
the consummation of the transactions contemplated thereby have been duly
authorized by all necessary corporate or other action on the part of such other
Transaction Party, (ii) each such other Transaction Party has the full power,
authority and legal right to execute and deliver each of the Transaction
Documents to which it is a party and to perform its obligations thereunder,
(iii) the execution, delivery and performance by each such other Transaction
Party of each of the Transaction Documents to which it is a party and the
consummation of the transactions contemplated thereby have been duly authorized
by all necessary corporate or other action on the part of such other Transaction
Party, and (iv) each of the Project Documents to which any such other
Transaction Party is a party has been duly executed and delivered by such other
Transaction Party and constitutes the legal, valid and binding obligation of
such other Transaction Party enforceable against such other Transaction Party in
accordance with its terms, except as the enforceability thereof may be limited
by
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(a) applicable bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and (b) the application of general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or in equity),
unless the failure of the accuracy of any of the representations and warranties
contained in clauses (i) through (iv) above could not reasonably be expected to
result in a Material Adverse Effect.
(b) To the best knowledge of the Company, there is no action, suit
or proceeding at law or in equity or by or before any Government Authority,
arbitral tribunal or other body now pending or threatened against or affecting
any such other Transaction Party or any of its property which could reasonably
be expected to result in a Material Adverse Effect.
SECTION 3.28. Absence of Immunity. Neither the Company nor any of
its property or revenue is entitled to any right of immunity in any jurisdiction
from suit, court jurisdiction, judgment, attachment, set-off or execution of a
judgment or from any other legal process or remedy relating to the obligations
of the Company under this Agreement or any other Credit Document.
SECTION 3.29. Year 2000. All reprogramming or replacements
required to permit the proper functioning (but only to the extent that such
proper functioning would otherwise be impaired by the occurrence of the year
2000), in and following the year 2000, of the computer systems and other
equipment containing embedded microchips of the Company and its Subsidiaries,
and the testing of all such systems and equipment, as so reprogrammed, are
expected to be completed by the end of the third quarter of 1999, except to the
extent that the failure to complete such reprogramming, replacements and/or
testing by such time could not reasonably be expected to result in a Material
Adverse Effect. The cost to the Company and its Subsidiaries of such
reprogramming, replacements and/or testing and of the reasonably foreseeable
consequences of year 2000 to the Company and its Subsidiaries is not anticipated
to result in a Material Adverse Effect.
ARTICLE IV
CONDITIONS
SECTION 4.01. Conditions Precedent to the First Borrowing. The
obligations of each Lender to make its Loan on the Closing Date in accordance
with Section 2.01 is subject to the satisfaction of the following conditions
precedent:
(a) the conditions set forth in Appendix 1 (and receipt by the
Administrative Agent of each of the documents listed therein), each of
which shall be in form and substance satisfactory to the Administrative
Agent (or such condition shall have been waived in accordance with
Section 11.02); and
(b) the conditions precedent that:
(i) the representations and warranties of the Company set forth in
this Agreement and of the Company and each other Credit Party in each of
the other Credit Documents
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then in effect to which it is a party, and, to the best knowledge of the
Company, of each other Transaction Party in each of the Credit Documents
then in effect to which it is a party, shall be true and correct on and
as of the date of such Loans (or, if stated to have been made solely as
of an earlier date, were true and correct as of such earlier date); and
(ii) at the time of and immediately after giving effect to the
making of such Loans, no Default shall have occurred and be continuing.
SECTION 4.02. Conditions Precedent to the Second Borrowing. The
obligation of each Lender to make its Loan on the Second Borrowing Date is
subject to the satisfaction on such date of the following conditions precedent:
(a) the representations and warranties of the Company set forth in
this Agreement and of the Company and each other Credit Party in each of
the other Credit Documents to which it is a party, and, to the best
knowledge of the Company, of each other Transaction Party in each of the
Credit Documents to which it is a party, shall be true and correct on and
as of the date of such Borrowing (or, if stated to have been made solely
as of an earlier date, were true and correct as of such earlier date);
and
(b) at the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing.
ARTICLE V
INFORMATION
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Company covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The
Company will furnish to the Administrative Agent and each Lender:
(a) within 120 days after the end of each fiscal year of the
Company, the audited consolidated balance sheet and related statements of
operations, members' equity and cash flows of the Company and its
Subsidiaries as of the end of and for such year, setting forth in each
case in comparative form the figures for the previous fiscal year, all
reported on by KPMG Peat Marwick LLP or other independent public
accountants of recognized national standing (without a "going concern" or
like qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that such
consolidated financial statements present fairly in all material respects
the financial condition and results of operations of the Company and its
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied;
(b) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year of the Company, the consolidated balance
sheet and related statements of operations, members' equity and cash
flows of the Company and its Subsidiaries as of the
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end of and for such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the figures
for (or, in the case of the balance sheet, as of the end of) the
corresponding period or periods of the previous fiscal year, all
certified by a Responsible Officer as presenting fairly in all material
respects the financial condition and results of operations of the Company
and its Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and
the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) of this Section, a certificate of a Responsible Officer
(i) certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or proposed
to be taken with respect thereto, (ii) setting forth reasonably detailed
calculations demonstrating compliance with Sections 7.01, 7.06, 7.07,
7.10, 7.11 and 7.12, (iii) setting forth reasonably detailed calculations
of Excess Cash Flow for the most recently ended fiscal quarter, (iv)
specifying the jurisdictions, and respective percentages of revenues
associated with such jurisdictions under the Iridium business plan, in
reasonable detail to demonstrate compliance with Section 8.08 and (v)
stating whether any change in GAAP or in the application thereof has
occurred since the date of the most recent audited financial statements
delivered to the Administrative Agent pursuant hereto and, if any such
change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under
clause (a) of this Section, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained
knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the extent
required by accounting rules or guidelines);
(e) promptly upon receipt, copies of all formal accountants'
letters received by the Company's management in respect of the Company;
(f) within 10 days after the last day of August 1999 and within 30
days after the last day of each other month prior thereto, in each case
prior to the earlier to occur of the Guarantee Obligation Termination
Date and the Guarantee Obligation Release Date, a certificate of a
Responsible Officer setting forth in reasonable detail the calculation of
Cumulative Adjusted Accrued Revenues as at the last day of such month;
(g) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other materials
filed by the Company or any of its Subsidiaries, with the SEC, or with
any national securities exchange, or distributed by the Company to its
members generally;
(h) promptly upon receipt, copies of any notice of default
received by the Company or any of its Subsidiaries under any instrument
or agreement evidencing or providing for Indebtedness (other than this
Agreement) and any notice of acceleration of any such Indebtedness and,
if the Company or any Subsidiary gives any such notice of default, a copy
thereof simultaneously therewith; and
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(i) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Company or any of its Subsidiaries, the Iridium Business
(including, without limitation, information as to the Government
Approvals required therefor) or compliance with the terms of this
Agreement and the other Credit Documents, as the Administrative Agent or
any Lender (through the Administrative Agent) may reasonably request.
SECTION 5.02. Notices of Material Events. The Company will
furnish, or will cause to be furnished, to the Administrative Agent and each
Lender prompt written notice of the following:
(a) the Company or any Subsidiary becoming aware of the occurrence
of any Default or Trigger Event;
(b) the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Government Authority against or affecting
the Company or any of its Subsidiaries that, if adversely determined,
could reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be expected
to result in liability of the Company and its Subsidiaries in an
aggregate amount exceeding $2,000,000;
(d) any material fire, explosion, accident, strike, lockout or
other labor dispute, drought, storm, hail, earthquake, embargo, act of
God or of the public enemy or other casualty (whether or not covered by
insurance) affecting the Iridium Business (unless notice thereof shall be
required to be furnished pursuant to Section 8.01(g)); and
(e) any other circumstance, act or condition (including, without
limitation, the adoption, amendment or repeal of any Government Rule
applicable to the Iridium Business or the Impairment of any Government
Approval or notice (whether formal or informal, written or oral) of the
failure to comply with the terms and conditions of any Government
Approval) which could reasonably be expected to result in a Material
Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Responsible Officer setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect
thereto.
SECTION 5.03. Notices under Principal Project Documents. The
Company will furnish to the Administrative Agent and each Lender promptly upon
their becoming available, copies of all material notices or material documents
received or delivered by the Company pursuant to any Principal Project Document
(including, without limitation, any notice or other document relating to a
failure by the Company to perform any of its covenants or obligations under such
Principal Project Document but excluding notices and other communications given
or received by the Company in the ordinary course of administration or
performance of such Principal Project Document).
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ARTICLE VI
AFFIRMATIVE COVENANTS
SECTION 6.01. Maintenance of Existence. The Company will, and will
cause each of its Subsidiaries to, preserve and maintain (a) its legal existence
and (b) all of its material licenses, rights, privileges and franchises required
for the Iridium Business and the due performance of all of its obligations and
the exercise of all of its rights under the Principal Project Documents to which
it is party, provided that nothing in this Section shall prohibit any
transaction expressly permitted under Section 7.03.
SECTION 6.02. Maintenance of Properties. The Company will, and
will cause each of its Subsidiaries to, keep and maintain all property material
to the conduct of its business, including without limitation the SNOC and any
backup facilities for business or satellite network operation, in good working
order and condition, ordinary wear and tear excepted.
SECTION 6.03. Taxes. The Company will, and will cause each of its
Subsidiaries to, (a) pay and discharge, or effectively provide for, all Taxes
imposed on the Company or on its income or profits or on any of its property
prior to the date on which penalties for the failure to pay or discharge such
Taxes attach thereto, provided that the Company shall have the right to contest
in good faith by appropriate proceedings the validity or amount of any such Tax,
and (b) promptly pay any valid, final judgment enforcing any such Tax and cause
the same to be satisfied of record.
SECTION 6.04. Compliance with Laws. The Company will, and will
cause each of its Subsidiaries to, comply in all material respects with all
Government Rules applicable to it or its property, except for any such
non-compliance that could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 6.05. Government Approvals.
(a) The Company will, and will cause each of its Subsidiaries to,
comply in all material respects with all Government Approvals obtained by it and
required for the Iridium Business as shall now or hereafter be necessary under
applicable Government Rules.
(b) The Company will not, and will not permit any of its
Subsidiaries to, take any legal or administrative action that seeks to amend,
supplement or modify in any material adverse respect any Government Approval
obtained by the Company or any of its Subsidiaries and required for the Iridium
Business. To the extent the Company has the contractual or legal right to
prevent such action, the Company will not permit any other Person to take any
legal or administrative action that seeks to amend, supplement or modify any
Government Approval required for the Iridium Business if such action could
reasonably be expected to result in a Material Adverse Effect.
(c) If any Government Approval obtained by the Company or any of
its Subsidiaries and required for the Iridium Business is materially Impaired,
the Company will diligently and timely (i) make all filings, (ii) pursue all
remedies and appeals which the Company
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determines, in good faith, to be necessary or appropriate and (iii) take such
other lawful action, in each case, as shall be necessary or, in the good faith
opinion of the Company, desirable to (x) prevent such Impairment from becoming
final and non-appealable or otherwise irrevocable, (y) postpone the
effectiveness of such Impairment and (y) cause such Impairment to be revoked or
amended or modified so as to eliminate the reasonable possibility of such
Impairment. To the extent the Company has the contractual or legal right to do
so, if any Government Approval obtained by any Person (other than the Company or
any of its Subsidiaries) and required for the Iridium Business is materially
Impaired, the Company will diligently and timely, and will cause such Person
diligently and timely to, (i) make all filings, (ii) pursue all remedies and
appeals which the Company determines, in good faith, to be necessary or
appropriate and (iii) take such other lawful action, in each case, as shall be
necessary or, in the good faith opinion of the Company, desirable to (x) prevent
such Impairment from becoming final and non-appealable or otherwise irrevocable,
(y) postpone the effectiveness of such Impairment and (y) cause such Impairment
to be revoked or amended or modified so as to eliminate the reasonable
possibility of such Impairment, unless in each case such Impairment could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 6.06. Environmental Compliance.
(a) The Company shall not Use or Release, or permit the Use or
Release of, Hazardous Materials on any property of the Company or any of its
Subsidiaries other than in accordance with the requirements of all applicable
Environmental Laws.
(b) To the extent required by Environmental Laws, the Company
shall conduct and complete any investigation, assessment, study, sampling and
testing and undertake any cleanup, removal, remedial or other action necessary
to remove and clean up all Hazardous Materials Released at, on, in, under or
from any property of the Company or any of its Subsidiaries associated with the
Iridium Business, in accordance with the requirements of all applicable
Environmental Laws.
(c) The Company shall deliver to the Administrative Agent promptly
upon obtaining knowledge of any fact, circumstance, condition or occurrence that
could reasonably be expected to form the basis of an Environmental Claim in
excess of $2,000,000 arising with respect to or relating to any property of the
Company or any of its Subsidiaries associated with the Iridium Business, a
notice thereof describing the same in reasonable detail and, together with such
notice or as soon thereafter as possible, a description of the action that the
Company has taken or proposes to take with respect thereto and, thereafter, from
time to time such detailed reports with respect thereto as the Administrative
Agent may reasonably request.
SECTION 6.07. Books and Records. The Company will, and will cause
each of its Subsidiaries to, keep proper books of record and account in
accordance with GAAP in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities.
SECTION 6.08. Inspection Rights. Subject to the confidentiality
requirements set forth in Section 11.12, the Company will, and will cause each
of its Subsidiaries to, permit representatives of the Global Lead Arrangers, the
Agents or any Lender (including, without
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limitation, any advisor, at the reasonable request of the Global Lead
Arrangers), upon reasonable prior notice to the Company unless a Default shall
have occurred and is continuing, to visit and inspect its property, to examine,
copy or make excerpts from its books, records and documents and to discuss its
affairs, finances and accounts with its principal officers, engineers and
independent accountants, all at such reasonable times during normal business
hours and at such intervals as such representatives may reasonably request. The
Company hereby authorizes each of its principal officers, engineers and
independent accountants to discuss the Company's affairs, finances and accounts
as contemplated by this Section.
SECTION 6.09. Use of Proceeds. The proceeds of the Loans on the
occasion of each Borrowing will be used solely to (a) repay outstanding amounts
under the Credit Agreement dated as of August 21, 1996, as amended, between the
Company (as assignee of Iridium LLC), the lenders party thereto, Barclays
Capital as documentation agent thereunder and Chase as administrative agent
thereunder (the "Existing Guaranteed Credit Agreement") and the Credit Agreement
dated as of December 19, 1997, as amended, between the Company, the lenders
party thereto, Barclays Capital as documentation agent thereunder and Chase as
administrative agent thereunder (the "Existing Secured Credit Agreement"), (b)
pay the fees and expenses reasonably incurred by the Company under, or in
connection with, such refinancing, (c) pay or reimburse Costs, and (d) pay the
fees and expenses reasonably incurred by the Company under, or in connection
with the execution and delivery of, the Credit Documents. No part of the
proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that entails a violation of any of the Regulations of the Board,
including Regulations U and X. Notwithstanding anything to the contrary
contained in this Section, neither any of the Agents nor any of the Lenders
shall have any responsibility as to the use of any proceeds of the Loans by the
Company.
SECTION 6.10. Collateral; Security Interests.
(a) Except as may be provided in the Security Documents and
subject to any Disposition permitted under Section 7.04, the Company will, and
will cause each of its Subsidiaries to, at all times after the Closing Date: (i)
take, or cause to be taken, all action required (x) to maintain good, legal and
marketable title to the Collateral purported to be pledged by it pursuant to the
Security Documents to which it is party (other than any leasehold properties
covered thereby) free and clear of all Liens other than Permitted Liens and (y)
to remain lawfully possessed of a valid and subsisting leasehold estate in and
to any leasehold properties purported to be pledged by it pursuant to such
Security Documents free and clear of all Liens other than Permitted Liens; (ii)
at all times, maintain and preserve the Liens created on the Collateral
purported to be pledged by it pursuant to such Security Documents and the first
priority thereof (subject to Permitted Liens); and (iii) cause all such Security
Documents to be in full force and effect.
(b) Except as may be provided in the Security Documents and
subject to any Disposition permitted under Section 7.04, the Company will, and
will cause each Subsidiary Guarantor to, execute any and all further documents,
financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements, fixture
filings, mortgages, deeds of trust and other documents), which may be required
under any applicable law, or which any Agent or the Required Lenders may
reasonably
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request, to effectuate the transactions contemplated by the Credit Documents
then in effect or (after the Closing Date) to grant, preserve, protect or
perfect the Liens created or intended to be created by the Security Documents to
which any Credit Party is a party or the validity or priority of any such Lien,
all at the expense of the Company. Without limiting the foregoing, the Company
shall promptly discharge, at its own cost and expense, any Lien (other than
Permitted Liens) on the Collateral purported to be pledged by it pursuant to
such a Security Document.
(c) If any assets (including any real property or improvements
thereto or any interest therein, including any leasehold interests, but only if
such asset has a value in excess of $10,000,000 and is located in the United
States of America or any territory thereof), are acquired by the Company or any
Domestic Subsidiary after the Closing Date (other than assets constituting
Collateral under the Security Agreement), the Company will notify the
Administrative Agent thereof (unless such assets were acquired by the Company or
its Subsidiary in the ordinary course of its business), and the Company will
cause such assets (in the case of any real property including leasehold
interests, upon the request of the Required Lenders through the Administrative
Agent) to be subjected to a Lien under the relevant Security Documents, and will
take, and cause its Domestic Subsidiaries to take, such actions as shall be
necessary or reasonably requested by the Administrative Agent to grant and
perfect such Liens, including actions described in paragraph (b) of this
Section, all at the expense of the Company; provided that, notwithstanding the
foregoing, the Company will cause a mortgage to be executed and delivered with
respect to (i) the SNOC and (ii) any ownership or leasehold interest in the
Hawaiian TTAC located in Oahu, Hawaii, in each case within 30 days after the
acquisition thereof by the Company from Motorola (together with the other
documents required by the immediately succeeding sentence). If the Required
Lenders shall have reasonably requested a mortgage, deed of trust or similar
instrument to be delivered in respect of any such real property, fixtures and/or
leasehold interests in respect of real property, the Company shall deliver, or
cause to be delivered, the following documents and/or satisfy the following
conditions (in each case to the reasonable satisfaction of the Administrative
Agent):
(i) The following documents each of which shall be duly executed
(and, where appropriate, acknowledged) by the party or parties thereto
and delivered to the Administrative Agent:
(A) one or more Mortgages covering the subject real
property, fixtures and/or leasehold interests (the "Mortgaged
Properties"), in recordable form (in such number of copies as the
Administrative Agent shall have requested);
(B) with respect to the Mortgaged Properties, one or more
mortgagee policies of title insurance on A.L.T.A. forms reasonably
satisfactory to the Administrative Agent and issued by one or more
title companies satisfactory to the Administrative Agent (the
"Title Companies"), insuring the validity and priority of the
Liens created under each such Mortgage for and in amounts
reasonably satisfactory to the Administrative Agent, subject only
to such exceptions as are reasonably satisfactory to the
Administrative Agent, and, to the extent necessary under
applicable law, for filing in the appropriate county land
office(s), Uniform Commercial Code financing statements covering
fixtures
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relating to the Mortgaged Properties, in each case appropriately
completed and duly executed;
(C) with respect to the Mortgaged Properties, as-built
surveys of recent date of each facility to be covered by each such
Mortgage, showing such matters as may be reasonably required by
the Administrative Agent, which surveys shall be in form and
content reasonably acceptable to the Administrative Agent, and
certified to the Administrative Agent, the Lenders and the Title
Companies, and shall have been prepared by a registered surveyor
reasonably acceptable to the Administrative Agent;
(D) if reasonably requested by the Administrative Agent,
certified copies of certificates of occupancy (or, if it is not
the practice to issue certificates of occupancy in the
jurisdiction in which the facilities to be covered by such
Mortgage are located, then such other evidence reasonably
satisfactory to the Administrative Agent) permitting the fully
functioning operation and occupancy of each such facility, zoning
correspondence and such other permits necessary for the use and
operation of each such facility issued by the respective
governmental authorities having jurisdiction over each such
facility;
(E) Uniform Commercial Code searches in each of the
jurisdictions (both state and county levels) where the Mortgaged
Properties are located;
(F) if reasonably requested by the Administrative Agent,
appraisals as of recent date of each of the Mortgaged Properties
(including the facilities and other improvements located thereon
and machinery and equipment), such appraisals to be prepared by an
appraiser, and to use a methodology, acceptable to the
Administrative Agent, or other evidence of the value of such
Mortgaged Properties reasonably satisfactory to the Administrative
Agent;
(G) if reasonably requested by the Administrative Agent, an
environmental survey and assessment of recent date prepared by a
firm of licensed engineers (familiar with the identification of
toxic and hazardous substances) in form and substance satisfactory
to the Administrative Agent, such environmental survey and
assessment to be based upon physical on-site inspections by such
firm of the sites comprising the Mortgaged Properties and the
related facilities, whether owned, operated or leased by the
Company and its Subsidiaries, as well as a historical review of
the uses of such sites and facilities and of the business and
operations of the Company and to provide that the Lenders may rely
on the results of such audits;
(H) in the case of any leasehold interests covered by the
Mortgages, such estoppels, consents, subordination agreements and
other agreements from the lessor, the holder of a fee mortgage or
a sublessee, as the Administrative Agent may reasonably request;
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(I) evidence reasonably satisfactory to the Administrative
Agent of the existence of insurance with respect to such Mortgaged
Properties that complies with the requirements of Section 8.01,
and that such insurance is in full force and effect and that all
premiums then due and payable thereon have been paid;
(J) opinions, each dated on or about the date the
conditions set forth in this Section are satisfied, of local
counsel in the respective jurisdictions in which such Mortgaged
Properties are located, in form and substance reasonably
satisfactory to the Administrative Agent (and the Company hereby
instructs such counsel to deliver such opinion(s) to the Lenders
and the Agents); and
(K) such other documents and evidence relating to the
foregoing conditions as the Administrative Agent or the Required
Lenders (through the Administrative Agent) may reasonably request.
(ii) The Company shall have paid to the Title Companies all
expenses and premiums of the Title Companies in connection with the
issuance of such policies and in addition shall have paid to the Title
Companies an amount equal to the recording and stamp taxes payable in
connection with recording each Mortgage and the Uniform Commercial Code
financing statements in the appropriate county land office or state
recording office, as the case may be.
(iii) The Company shall have paid or reimbursed Administrative
Agent for all reasonable out-of-pocket costs and expenses not theretofore
paid or reimbursed in connection with the foregoing, including, without
limitation, the reasonable fees and expenses of counsel, in connection
with the negotiation, preparation, execution and delivery of the
documents contemplated by this Section.
SECTION 6.11. Certain Obligations Respecting Subsidiaries.
(a) The Company will, and will cause each of its Subsidiaries to,
take such action from time to time as shall be necessary to ensure that each
Subsidiary of the Company is, directly or indirectly, a Wholly Owned Subsidiary
(subject to Section 7.03).
(b) After the Closing Date, the Company will take such action, and
will cause each of its Subsidiaries to take such action, from time to time as
shall be necessary to ensure that (i) 100% of the outstanding equity interests
of each Domestic Subsidiary owned by the Company or any other Domestic
Subsidiary and (ii) 65% of the outstanding equity interests of each Foreign
Subsidiary owned by the Company or any Domestic Subsidiary is pledged to the
Collateral Agent pursuant to the Security Agreement. Subject to and in
furtherance of the foregoing, in the event that any additional shares of capital
stock or other certificated equity interests shall be issued by any such
Subsidiary after the Closing Date, the Company agrees forthwith to deliver to
the Collateral Agent pursuant to the Security Agreement the certificates
evidencing such shares of stock or equity interests, as the case may be,
accompanied by undated stock (or transfer, as the case may be) powers executed
in blank and to take such other action as the Collateral Agent shall request to
perfect the security interest created therein pursuant to the Security
Agreement.
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(c) After the Closing Date, the Company will take such action, and
will cause each of its Domestic Subsidiaries to take such action, from time to
time as shall be necessary to ensure that all Domestic Subsidiaries of the
Company which are directly owned by the Company or another Domestic Subsidiary
are "Subsidiary Guarantors" under the Subsidiary Guarantee Agreement, and have
assigned to the Collateral Agent for the benefit of the Secured Parties all of
its right, title and interest in any Collateral held by such Domestic Subsidiary
to the extent required herein or in any Security Document to which it is a
party. Without limiting the generality of the foregoing, in the event that the
Company or any of its Domestic Subsidiaries shall form or acquire any new
Domestic Subsidiary after the Closing Date that shall constitute a Subsidiary
hereunder, the Company or such Domestic Subsidiary, as the case may be, will
cause such new Subsidiary to after the Closing Date:
(i) become a "Subsidiary Guarantor" under the Subsidiary Guarantee
Agreement, and an "Obligor" under the Security Agreement pursuant to a
Subsidiary Guarantee Assumption Agreement;
(ii) cause such Subsidiary to take such action (including, without
limitation, delivering such certificated equity interests and executing
and delivering such Uniform Commercial Code financing statements, if
applicable) as shall be necessary to create and perfect valid and
enforceable first priority Liens on substantially all of the personal
property of such new Subsidiary, to the extent required herein or in any
Security Document to which it is a party; and
(iii) deliver such proof of corporate or other action, incumbency
of officers, opinions of counsel and other documents as is consistent
with those delivered by the Subsidiaries of the Company pursuant to
Article IV or as reasonably requested by the Administrative Agent.
SECTION 6.12. License Subsidiaries; Real Estate Subsidiaries.
(a) The Company will take such action, and will cause each of its
Subsidiaries to take such action, as shall be necessary so that, from and after
the transfer of the FCC License by Motorola pursuant to Section 18.H of the
Space System Contract, the FCC License and the other Telecommunications
Approvals (if any) identified on Schedule II or III from time to time issued to
the Company or any of its Subsidiaries will be held by a separate License
Subsidiary. Anything in this Agreement to the contrary notwithstanding, the
Company will not permit any License Subsidiary to: (i) sell, assign or otherwise
dispose of the FCC License or any other Telecommunications Approval held by it;
(ii) create, assume, incur or suffer to exist any Lien on any of its properties;
(iii) create, assume, incur or suffer to exist any Indebtedness (other than the
Guarantees provided by a License Subsidiary in connection with this Agreement,
the Existing Senior Notes or any additional Indebtedness permitted under Section
7.01(f)); or (iv) engage in any business or other transaction other than holding
the Telecommunications Approval(s) held by it and activities reasonably
incidental thereto, and the incurrence of Indebtedness permitted under clause
(iii) above.
(b) The Company will take such action, and will cause each of its
Subsidiaries to take such action, as shall be necessary so that all real
property (including leasehold interests) and
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fixtures thereon of the Company and its Subsidiaries will be held by one or more
Real Estate Subsidiaries; provided that (i) all such real property located in
the United States of America shall be held by a Domestic Subsidiary and (ii) all
such real property located outside of the United States of America may be held
by a Foreign Subsidiary. Anything in this Agreement to the contrary
notwithstanding, the Company will not permit any Real Estate Subsidiary to: (i)
sell, assign or otherwise dispose of real property and fixtures thereon held by
it (other than by Permitted Liens or as permitted by Section 7.04); (ii) create,
assume, incur or suffer to exist any Lien (other than Permitted Liens) on any of
its properties; (iii) create, assume, incur or suffer to exist any Indebtedness
(other than (A) Capital Lease Obligations of such Real Estate Subsidiary or (B)
the Guarantees provided by such Real Estate Subsidiary in connection with this
Agreement, the Existing Senior Notes or any additional unsecured Indebtedness
permitted under Section 7.01(f)); or (iv) engage in any business or other
transaction other than holding the real property and fixtures thereon held by it
and activities reasonably incidental thereto, and the incurrence of Indebtedness
permitted under clause (iii) above.
ARTICLE VII
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal
of and interest on each Loan and all fees payable hereunder have been paid in
full, the Company covenants and agrees with the Lenders that:
SECTION 7.01. Indebtedness. The Company will not, and will not
permit any of its Subsidiaries to, create, incur, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness of the Company and its Subsidiaries hereunder and
the other Credit Documents;
(b) unsecured Indebtedness under the Motorola Guaranteed Credit
Agreement not exceeding $750,000,000 in aggregate principal amount
outstanding at any one time (as such amount may be increased pursuant to
clauses (c) or (d) below), provided that the proceeds thereof are used
solely in accordance with Section 8.12 of the Motorola Guaranteed Credit
Agreement;
(c) additional unsecured Indebtedness of the Company guaranteed by
Motorola, pursuant to the Motorola Guarantee Obligation not exceeding
$350,000,000 in aggregate principal amount outstanding at any one time,
which may be incurred under the Motorola Guaranteed Credit Agreement or
another credit agreement, and any Guarantee thereof by any Subsidiary,
provided that (i) the proceeds thereof are used, or are committed to be
used (and are actually so used within 180 days of such incurrence), to
pay or reimburse Costs or to Refinance Indebtedness outstanding pursuant
to this clause (c) and (ii) if not incurred under the Motorola Guaranteed
Credit Agreement, such Indebtedness shall have a maturity no earlier than
(and shall not contain any amortization or prepayment requirements prior
to) the Maturity Date and otherwise contain terms and conditions
(including, without limitation, covenants and events of default, but
excluding terms as to
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pricing and any terms applicable solely after the Maturity Date) not more
restrictive than the terms of the Motorola Guaranteed Credit Agreement;
(d) additional unsecured Indebtedness of the Company guaranteed by
Motorola not exceeding $400,000,000 in aggregate principal amount
outstanding at any one time, which may be incurred under the Motorola
Guaranteed Credit Agreement or another credit agreement, and any
Guarantee thereof by any Subsidiary, provided that (i) the proceeds
thereof are used to Refinance the Deferred O&M Amounts or to Refinance
Indebtedness outstanding pursuant to this clause (d) and (ii) if not
incurred under the Motorola Guaranteed Credit Agreement, such
Indebtedness shall have a maturity no earlier than (and shall not contain
any amortization or prepayment requirements prior to) the Maturity Date
and otherwise contain terms and conditions (including, without
limitation, covenants and events of default, but excluding terms as to
pricing and any terms applicable solely after the Maturity Date) not more
restrictive than the terms of the Motorola Guaranteed Credit Agreement;
(e) the Existing Senior Notes in aggregate principal amount of
$1,450,000,000 outstanding on the date hereof;
(f) additional unsecured Indebtedness of the Company (including,
without limitation, Indebtedness that is exchangeable for or exercisable
or convertible into equity interests in IWCL, the Company or any of its
Affiliates, or Indebtedness that is subordinated to the payment of any
other Indebtedness of the Company) and in respect of which any of the
Company's Subsidiaries may be a co-obligor or guarantor thereof, which
shall (i) (A) have a maturity date no earlier than the maturity of the
Existing Senior Notes, (B) not provide for any amortization or redemption
at any time prior to the date occurring one year after the Maturity Date
(other than on terms comparable to the Existing Senior Notes), and (C)
contain other terms and conditions (including, without limitation,
covenants and events of default, but excluding terms as to pricing) not
more restrictive than the terms of the Existing Senior Notes or (ii)
otherwise be approved by the Required Lenders; provided that the Net
Available Proceeds thereof are used to prepay the Loans to the extent
required by Sections 2.09(b), (c) and (j);
(g) the Existing Senior Subordinated Notes;
(h) (i) any Motorola Obligations and (ii) any other obligations of
the Company in respect of the Principal Project Documents (to the extent
any such obligations shall constitute Indebtedness);
(i) Indebtedness in respect of Capital Lease Obligations not
exceeding $20,000,000 in aggregate principal amount outstanding at any
one time;
(j) Indebtedness of any Person existing at the time such Person
merges into or consolidates with or becomes a Subsidiary of the Company
and Indebtedness secured by a Lien encumbering any property acquired by
such Person, which Indebtedness was not incurred in anticipation of, and
was outstanding prior to, such merger,
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consolidation or acquisition, provided that the Required Lenders shall
have consented to such merger, consolidation or acquisition to the extent
required under Sections 7.03 and 7.05, respectively;
(k) additional unsecured Indebtedness of the Company guaranteed by
Motorola not exceeding $175,000,000 in aggregate principal amount
outstanding at any one time and/or additional unsecured Indebtedness of
the Company guaranteed by Kyocera not exceeding $122,500,000 in aggregate
principal amount outstanding at any one time, provided that (i) the
proceeds thereof are used to pay Motorola or Kyocera, as the case may be,
for handsets or pagers manufactured by such entity in connection with the
Iridium Business and (ii) such Indebtedness shall have a maturity date no
earlier than (and shall not contain any amortization or prepayment
requirements prior to) the Maturity Date and otherwise shall contain
terms and conditions (including, without limitation, covenants and events
of default, but excluding terms as to pricing and any terms applicable
solely after the Maturity Date) not more restrictive than the Motorola
Guaranteed Credit Agreement (in the case of Indebtedness guaranteed by
Motorola) or this Agreement (in the case of Indebtedness guaranteed by
Kyocera); and
(l) additional Indebtedness not exceeding $5,000,000 in aggregate
principal amount outstanding at any one time.
SECTION 7.02. Liens. The Company will not, and will not permit any
of its Subsidiaries to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except for Permitted Liens.
SECTION 7.03. Mergers, Consolidations, Etc. The Company will not,
and will not permit any of its Subsidiaries to, enter into any transaction of
merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself
(or suffer any liquidation of dissolution), or convey, transfer or lease its
property substantially as an entirety to any person, except that (a) any
Subsidiary (other than a License Subsidiary or a Real Estate Subsidiary) may
enter into any such transaction with the Company, so long as the Company is the
surviving entity and (b) any Subsidiary (other than a License Subsidiary or a
Real Estate Subsidiary) may enter into any such transaction with any other
Subsidiary (other than a License Subsidiary or a Real Estate Subsidiary),
provided that no Domestic Subsidiary may merge with or into any Foreign
Subsidiary unless the Domestic Subsidiary is the surviving entity of such
merger.
SECTION 7.04. Sale of Assets. The Company will not, and will not
permit any of its Subsidiaries to, Dispose of any assets, except:
(a) sales of communications and related services and equipment in
the ordinary course of business;
(b) sales of obsolete assets or assets no longer used or useful in
the ordinary course of the business of the Company and its Subsidiaries;
and
(c) sales of Investments in accordance with the Depositary
Agreement.
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SECTION 7.05. Purchase of Assets. The Company will not, and will
not permit any of its Subsidiaries to, purchase any assets, except:
(a) the purchase of assets in connection with the Iridium Business
in accordance with the Project Documents or otherwise in the ordinary
course of business;
(b) the purchase of assets in connection with the Restoration of
Affected Property; and
(c) Investments permitted under Section 7.06.
SECTION 7.06. Investments. The Company will not, and will not
permit any of its Subsidiaries to, make or permit to remain outstanding any
Investments, except:
(a) Investments outstanding on the date hereof and identified in
Schedule VIII;
(b) deposit and other accounts permitted to be maintained by the
Company pursuant to Section 8.02;
(c) Permitted Investments;
(d) Hedging Agreements entered into by the Company in the ordinary
course of business and not for speculative purposes; and
(e) other Investments in an aggregate outstanding amount not at
any time exceeding $5,000,000 (measured by the amount of each such
Investment as of the time such Investment is made), provided that such
Investments are made only in Related Businesses.
SECTION 7.07. Restricted Payments. The Company will not make, or
agree to pay or make, directly or indirectly, any Restricted Payment, except:
(a) so long as no Default shall have occurred and be continuing,
distributions to Iridium LLC to enable Iridium LLC to make distributions
to the Iridium LLC Members pursuant to Section 3.07(c) of the Iridium LLC
Agreement with respect to each such Member's U.S. income tax liability
(if any); and
(b) any distribution to Iridium LLC to enable Iridium LLC to
redeem fractional interests of its equity interests following the
exercise of any warrants, options or other rights to acquire any equity
interests in Iridium LLC by the holders thereof.
Nothing herein shall be deemed to prohibit the payment of
dividends by any Subsidiary of the Company to the Company or to any other
Subsidiary of the Company.
SECTION 7.08. Transactions with Affiliates. Except as expressly
permitted by this Agreement, the Company will not, and will not permit any of
its Subsidiaries to, directly or indirectly: (a) make any Investment in an
Affiliate; (b) transfer, sell, lease, assign or otherwise dispose of any
property to an Affiliate; or (c) merge into or consolidate with or purchase or
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acquire property from an Affiliate, provided that the Company and its
Subsidiaries may enter into any such transaction not otherwise prohibited by the
terms of this Agreement (i) provided for and pursuant to any agreements that the
Company is or will be a party to in connection with the Iridium Business, (ii)
if the monetary or business consideration arising therefrom would, in the
opinion of the Company, be substantially as advantageous to the Company and its
Subsidiaries as the monetary or business consideration that would be obtained in
a comparable transaction with a Person not an Affiliate or (iii) provided that
the aggregate amount of all such transactions (other than any such permitted
under clauses (i) and (ii) above) does not exceed $10,000,000 in the aggregate.
SECTION 7.09. Restrictive Agreements. The Company will not, and
will not permit any of its Subsidiaries to, directly or indirectly, enter into,
incur or permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition upon (a) the ability of the Company or any
Subsidiary to create, incur or permit to exist any Lien upon any of its property
or assets or to sell, transfer or otherwise dispose of its assets, (b) the
ability of any Subsidiary to (i) pay dividends or other distributions with
respect to any shares of its equity interests, (ii) make or repay loans or
advances to the Company or any other Subsidiary or (iii) Guarantee Indebtedness
of the Company or any other Subsidiary under any of the Credit Documents or (c)
the ability of the Company or any Subsidiary to enter into amendments,
modifications, supplements or waivers of any of the Credit Documents or
Principal Project Documents; provided that (i) the foregoing shall not apply to
restrictions and conditions imposed by any applicable Government Rule or by any
Credit Document, (ii) the foregoing shall not apply to (A) restrictions and
conditions existing on the date hereof in the Motorola Guaranteed Credit
Agreement, the Senior Note Indentures, the MOU Agreements or otherwise
identified on Schedule IX (but shall apply to any amendment or modification
thereof expanding the scope of any such restriction or condition) or (B) any
comparable restrictions and conditions (not more restrictive in any material
respect than those referred to in clause (A) above) contained in any agreement
or instrument relating to Indebtedness permitted under Section 7.01, (iii) the
foregoing shall not apply to customary restrictions and conditions contained in
agreements relating to the sale of a Subsidiary pending such sale, provided that
such restrictions and conditions apply only to the Subsidiary that is to be sold
and such sale is permitted hereunder and (iv) clause (a) of the foregoing shall
not apply to either restrictions or conditions imposed by any agreement relating
to secured Indebtedness permitted by this Agreement if such restrictions or
conditions apply only to the property or assets securing such Indebtedness or
customary provisions in leases restricting the assignment thereof.
SECTION 7.10. Financial Covenants.
(a) At all times prior to the Covenant Conversion Date:
(i) Minimum Subscribers. The Company will not permit Total
Satellite Subscribers or Total Subscribers as at any date specified below
to be less than the respective number set opposite such date below:
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Total Satellite
---------------
Date Subscribers Total Subscribers
---- ----------- -----------------
March 31, 1999 27,000 52,000
June 30, 1999 88,000 213,000
September 30, 1999 173,000 454,000
(ii) Minimum Revenues. The Company will not permit (x) Cumulative
Cash Revenues or (y) Cumulative Accrued Revenues, in each case for the
period ending on the tenth Business Day after any date specified below,
to be less than the respective amount set opposite such date below:
Cumulative
Date Cumulative Cash Revenues ($) Accrued Revenues ($)
---- ---------------------------- --------------------
March 31, 1999 $4,000,000 $30,000,000
June 30, 1999 50,000,000 150,000,000
September 30, 1999 220,000,000 470,000,000
(iii) Total Invested Capital. The Company will not at any time
permit the ratio of (a) the aggregate outstanding amount of Total
Indebtedness (after giving effect to any Indebtedness incurred on any
date and the application of proceeds therefrom) to (b) Total Invested
Capital to exceed 0.6667 to 1.
(b) At all times from and after the Covenant Conversion Date:
(i) Secured Leverage Ratio. The Company will not permit the
ratio of (a) the aggregate outstanding amount of Secured Indebtedness
(after giving effect to any Indebtedness incurred on any date and the
application of proceeds therefrom) to (b) Annualized Adjusted EBITDA at
any time during any period set forth below to exceed the ratio set forth
opposite such period below:
Period Ratio
------ -----
From and including December 31, 1999
to but excluding March 31, 2000 2.0:1
Thereafter 1.5:1
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(ii) Total Leverage Ratio. The Company will not permit the ratio
of (a) the aggregate outstanding amount of Total Indebtedness (after
giving effect to any Indebtedness incurred on any date and the
application of proceeds therefrom) to (b) Annualized Adjusted EBITDA at
any time during any period set forth below to exceed the ratio set forth
opposite such period below:
Period Ratio
------ -----
From and including December 31, 1999
to but excluding March 31, 2000 10:1
From and including March 31, 2000
to but excluding June 30, 2000 7.5:1
Thereafter 5.0:1
(iii) Interest Coverage Ratio. The Company will not permit the
Interest Coverage Ratio at any time during any period set forth below to
be less than the ratio set forth opposite such period below:
Period Ratio
------ -----
From and including December 31, 1999
to but excluding March 31, 2000 1.0:1
From and including March 31, 2000
to but excluding June 30, 2000 1.5:1
Thereafter 2.0:1
SECTION 7.11. Capital Expenditures. The Company will not, and will
not permit any of its Subsidiaries, to make Capital Expenditures during the
period from January 1, 2000 to the Maturity Date in excess of the sum of (a)
$350,000,000 plus (b) the difference between (i) $300,000,000 and (ii) the
aggregate amount of Capital Expenditures made during the period from January 1,
1999 through December 31, 1999.
SECTION 7.12. Operating Leases. The Company will not, and will not
permit any of its Subsidiaries to, become or remain liable in any way, whether
directly or by assignment or as a guarantor or other surety, for the obligations
of the lessee under any operating lease (other than intercompany leases between
Company and its Subsidiaries), if the aggregate amount of all rents paid by the
Company and its Subsidiaries under all such operating leases would exceed
$25,000,000 in any fiscal year of the Company.
SECTION 7.13. Sales and Lease-Backs. The Company will not, and
will not permit any of its Subsidiaries to, become or remain liable as lessee or
as guarantor or other surety with respect to any lease of any property whether
real or personal or mixed or whether now
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owned or hereafter acquired that the Company or any of its Subsidiaries has sold
or transferred or intends to sell or transfer to any other Person.
SECTION 7.14. Payment of Certain Indebtedness.
(a) The Company will not, and will not permit any of its
Subsidiaries to, purchase, redeem, retire or otherwise acquire for value, or set
apart any money for a sinking, defeasance or other analogous fund for the
purchase, redemption, retirement or other acquisition of, or make any voluntary
payment or prepayment of the principal of or interest on, or any other amount
owing in respect of, any of the Existing Senior Subordinated Notes, except for
regularly scheduled payments of interest in respect thereof required to be made
pursuant to the terms thereof (and subject to the subordination provisions
applicable thereto).
(b) The Company will not, and will not permit any of its
Subsidiaries to, purchase, redeem, retire or otherwise acquire for value, or set
apart any money for a sinking, defeasance or other analogous fund for the
purchase, redemption, retirement or other acquisition of, or make any voluntary
payment or prepayment of the principal of or interest on, or any other amount
owing in respect of, any of the Existing Senior Notes or Indebtedness permitted
under Section 7.01(f), except regularly scheduled payments of interest in
respect thereof required pursuant to the instruments evidencing such
Indebtedness (and, in the case of any subordinated Indebtedness, subject to the
subordination provisions applicable thereto).
(c) The Company will not, and will not permit any of its
Subsidiaries to, purchase, redeem, retire or otherwise acquire for value, or set
apart any money for a sinking, defeasance or other analogous fund for the
purchase, redemption, retirement or other acquisition of, or make any voluntary
payment or prepayment of the principal of or interest on, or any other amount
owing in respect of, the Motorola Obligations (other than any Motorola Vendor
Financing referred to in clause (b) or (c) of the definition thereof) or any
Indebtedness of the Company and/or its Subsidiaries that is guaranteed by
Motorola, except for (i) regularly scheduled payments thereof required pursuant
to the terms thereof (and subject to any subordination provisions applicable
thereto set forth in the Motorola Consent), (ii) with respect to any revolving
credit facility, the prepayment and reborrowing of loans thereunder, (iii) other
payments or prepayments thereof made from that portion of Excess Cash Flow not
required to be applied to a prepayment of the Loans pursuant to Section 2.09(f)
(provided that the Company shall have made any prepayment required under Section
2.09(f)), (iv) any Refinancing of the Deferred O&M Amounts with Indebtedness
permitted under Section 7.01(d) and (v) any Refinancing thereof with
Indebtedness permitted under Section 7.01(f), or with the proceeds of any Equity
Issuances, provided that, in the case of this subparagraph (v), (x) at least
$500,000,000 of aggregate Net Available Proceeds from Equity Issuances (other
than Excluded Equity Issuances), Debt Incurrences (other than Excluded Debt
Incurrences) and/or Debt Incurrences pursuant to the Motorola Guarantee
Obligation after the Closing Date shall have been received and used or committed
to be used (and shall have been, or shall be, actually so used within 180 days
of such Equity Issuance or Debt Incurrence) to pay or reimburse Costs and (y)
the Company shall have delivered to the Administrative Agent a certificate of
its chief financial officer (in form and substance reasonably satisfactory to
the Administrative Agent and dated the date of such Refinancing) that the
Company has committed or available funding to
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meet all projected Costs (as set forth in the Approved Budget and, with respect
to Costs for any period not covered by such budget, as reasonably estimated by
the Company's chief financial officer (in light of the Cost projections set
forth in the Financial Projections and other information available at the time
and reasonably considered relevant thereto) and set forth in reasonable detail
in such certificate) of the Company and its Subsidiaries to (but not including)
the Maturity Date, which funding may include projected revenues (as so estimated
by the Company's chief financial officer in light of historical performance of
the Iridium Business and other factors reasonably considered relevant at such
time, and set forth in reasonable detail in such certificate) and additional
Indebtedness permitted to be (but not theretofore) incurred under Sections
7.01(b), (c) and (d) that would be guaranteed by Motorola.
(d) The Company will not consent to any modification, supplement
or waiver of any of the provisions of any agreement, instrument or other
document to the extent evidencing or relating to the Indebtedness covered by any
of the foregoing paragraphs of this Section (for purposes of this paragraph (d),
the "Covered Indebtedness"), unless and to the extent (i) such Covered
Indebtedness as so modified or supplemented (or, if applicable, after giving
effect to such waiver) would be permitted to be incurred as new Indebtedness (in
lieu of the Covered Indebtedness) under Section 7.01 and (ii) such modification,
supplement or waiver would not result in the substantial equivalent of a
purchase, redemption, retirement, acquisition, setting aside, payment or
prepayment otherwise prohibited by the foregoing paragraphs of this Section. The
Company shall provide the Administrative Agent with prior written notice of each
proposed modification, supplement or waiver in respect of any such Indebtedness
(and the Administrative Agent shall promptly provide copies thereof to each
Lender). Promptly following the effectiveness of each such modification,
supplement or waiver, the Company shall provide the Administrative Agent with a
copy thereof as executed and delivered by the parties thereto (and the
Administrative Agent shall promptly provide a copy thereof to each Lender).
SECTION 7.15. Organizational Documents. The Company will not, and
will not permit any of its Subsidiaries to, consent to any modification,
supplement or waiver of any of the provisions of the Company LLC Agreement, the
charter or by-laws of any Subsidiary, in each case which could reasonably be
expected to be materially adverse to the interests of the Lenders, without the
prior consent of the Administrative Agent (acting with the approval of the
Required Lenders). The Company shall provide the Administrative Agent with prior
written notice of each proposed modification, supplement or waiver in respect of
thereof not less than 10 Business Days prior to the proposed effective date
thereof (and the Administrative Agent shall promptly provide copies thereof to
each Lender). Promptly following the effectiveness of each such modification,
supplement or waiver, the Company shall provide the Administrative Agent with a
copy thereof as executed and delivered by the parties thereto (and the
Administrative Agent shall promptly provide a copy thereof to each Lender).
SECTION 7.16. Lines of Business. The Company will not, and will
not permit any of its Subsidiaries to, engage to any substantial extent in any
line or lines of business activity other than the Iridium Business.
SECTION 7.17. Fiscal Year. To enable the ready and consistent
determination of compliance with the covenants set forth herein, the Company
shall not change the last day of
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its fiscal year from December 31, or the last days of the first three fiscal
quarters in each of its fiscal years from March 31, June 30 or September 30,
respectively.
ARTICLE VIII
CERTAIN BUSINESS-RELATED COVENANTS;
MOTOROLA GUARANTEE OBLIGATION
Until the Commitments have expired or terminated and the principal
of and interest on each Loan and all fees payable hereunder have been paid in
full, the Company covenants and agrees with the Lenders that:
SECTION 8.01. Insurance.
(a) Insurance Maintained by Motorola. The Company will cause
Motorola to procure at its own expense and maintain in full force and effect at
all times the insurance required by the Space System Contract and the O&M
Contract. The Company will, or will cause Motorola to, upon request from time to
time, deliver to the Administrative Agent such evidence of such insurance as may
be reasonably requested by the Administrative Agent (or any Lender through the
Administrative Agent). The Company will cause each other Transaction Party to a
Principal Project Document to procure at its own expense and maintain in full
force and effect at all times the insurance, if any, required by such Project
Document.
(b) Insurance Maintained by the Company. The Company will, and
will cause each of its Subsidiaries to, maintain insurance with financially
sound and reputable insurance companies, and with respect to property and risks
of a character usually maintained by entities engaged in the same or similar
business similarly situated, against loss, damage and liability of the kinds and
in the amounts customarily maintained by such entities. Without limiting the
foregoing, the Company will procure at its own expense and maintain in full
force and effect at all times, with financially sound and reputable insurance
companies, the insurance set forth in Appendix 2. In addition to the insurance
coverage otherwise required by this paragraph (b), the Company will at all times
maintain the insurance coverage required of it under the terms of each of the
Project Documents. The Company will not obtain or carry separate insurance
concurrent in form or contributing in the event of loss with that required by
this Section unless the Administrative Agent is the named insured thereunder,
with loss payable as provided herein. The Company will immediately notify the
Administrative Agent whenever any such separate insurance is obtained and shall
deliver to the Administrative Agent copies of the certificates evidencing the
same.
(c) Certain Insurance Policy Provisions. All policies of insurance
required to be maintained pursuant to this Section covering loss or damage to
any property shall provide that (i) there shall be no recourse against the
Secured Parties for payment of premiums or other amounts with respect thereto,
(ii) the insurer is required to provide the Administrative Agent with at least
30 days' (or ten days' in the case of nonpayment of premiums) prior notice of
reduction in coverage or amount (other than a reduction in coverage or amount
resulting from a payment thereunder), cancellation or non-renewal of any policy
and (iii) the proceeds of all policies (other than in respect of professional
liability, aircraft liability, pollution legal liability, comprehensive
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general liability, workers' compensation and comprehensive automobile liability
insurance) shall be payable to the Collateral Agent pursuant to a standard first
mortgagee endorsement, without contribution, substantially equivalent to the New
York standard mortgagee endorsement. The Administrative Agent and the Lender
shall be named as additional insureds on all such liability policies. All
policies (other than in respect of professional liability, aircraft liability,
pollution legal liability, comprehensive general liability, comprehensive
automobile liability and workers' compensation insurance) shall insure the
interests of the Secured Parties regardless of any breach or violation by the
Company of warranties, declarations or conditions contained in such policies,
any action or inaction of the Company or others, or any foreclosure relating to
the Iridium Business or any change in ownership of all or any portion of the
Company. The Company shall comply with the orders, rules and regulations of the
American Insurance Association or any other body now or hereafter constituted
exercising similar functions which are at any time applicable to the Iridium
Business (except any thereof the non-compliance with which could not reasonably
be expected to result in a Material Adverse Effect or which could not adversely
effect the availability or the effectiveness of insurance coverage required by
this Section).
(d) Copies of Insurance Certificates. The Company will deliver to
the Administrative Agent, within 30 days after the end of each fiscal year of
the Company, a certificate of a Responsible Officer:
(i) confirming that all insurance policies required pursuant to
this Section are in force on the date thereof;
(ii) confirming the names of the insurers issuing such policies;
(iii) confirming the amounts and expiration date or dates of such
policies;
(iv) including copies of certificates evidencing such policies
marked "premium paid" or accompanied by other evidence of such payment
reasonably satisfactory to the Administrative Agent; and
(v) stating that such policies comply with the requirements of
this Section.
Such certificate shall be accompanied by a certificate of a nationally
recognized independent insurance broker reasonably satisfactory to the
Administrative Agent (an "Acceptable Insurance Broker"), to the effect specified
in the foregoing clauses of this paragraph (d).
(e) Copies of Insurance Policies. Promptly upon receipt thereof
after the Closing Date, the Company will deliver to the Administrative Agent a
duplicate, certified by an Acceptable Insurance Broker, of each policy of
insurance required to be in effect hereunder, bearing a notation evidencing
payment of the premium therefor or accompanied by other proof of payment
reasonably satisfactory to the Administrative Agent. Not less than 15 days prior
to the expiration date of any policy of insurance required to be in effect
hereunder, the Company shall deliver to the Administrative Agent a certificate
of insurance with respect to each renewal policy, certified by an Acceptable
Insurance Broker, bearing a notation evidencing payment of the premium therefor
or accompanied by other proof of payment reasonably satisfactory to the
Administrative Agent. Promptly after receipt thereof by the Company, the Company
shall
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deliver to the Administrative Agent a duplicate, certified by an Acceptable
Insurance Broker, of each such renewal policy.
(f) Right to Procure Insurance. In the event the Company fails, or
fails to cause Motorola, to procure or maintain the full insurance coverage
required by this Section, the Administrative Agent and the Required Lenders,
upon 10 days' prior notice (unless such insurance coverage would lapse within
such period, in which event notice should be given as soon as reasonably
possible) to the Company of any such failure, may (but shall not be obligated
to) take out the required policies of insurance and pay the premiums on the
same. All amounts so advanced therefor by the Administrative Agent and the
Lenders shall become an additional obligation of the Company to the
Administrative Agent and the Lenders, and the Company shall forthwith pay such
amounts to the Administrative Agent, together with interest thereon at the
Post-Default Rate from the date so advanced.
(g) Notice of Event of Loss or Change in Insurance Coverage. The
Company shall promptly notify the Administrative Agent and each Lender upon
obtaining knowledge of any Event of Loss that could reasonably be expected to
result in loss or damage exceeding $2,000,000. The Administrative Agent shall
promptly notify each Lender of each written notice received by it with respect
to the cancellation of, adverse change in, or default under, any insurance
policy required to be maintained in accordance with this Section.
SECTION 8.02. Accounts. The Company will not, and will not permit
any of its Subsidiaries to, maintain any deposit or other similar account with
any financial institution other than Permitted Investments and as permitted or
contemplated under the Depositary Agreement.
SECTION 8.03. Approved Budget; Financial Projections.
(a) On or before February 1 of each fiscal year, the Company
through its board of directors shall adopt an Annual Budget for such fiscal
year; provided that the aggregate Costs for the Annual Budget for the fiscal
year ending on December 31, 1999 shall be substantially similar to the aggregate
Cost projections for such fiscal year as set forth in the Financial Projections.
From and after the adoption of an Approved Budget, the Company shall not amend
or otherwise modify such Approved Budget without the prior written consent of
the Required Lenders if the effect of such amendment or modification is to
increase the aggregate Costs budgeted in such Annual Budget above the Approved
Budgeted Amount as originally in effect upon the adoption of such budget. The
Company will furnish the Administrative Agent and the Lenders with certified
copies of each Approved Budget (or any amendment or modification thereof)
promptly following the adoption thereof by its board of directors or approval
thereof by the Company.
(b) For any period covered by an Approved Budget, the Company will
not incur Costs required to be paid, or make payment for Costs, during any
Budget Period exceeding the Approved Budget Amount for such period.
(c) If at any time after the date hereof the Company shall prepare
and have approved by the board of directors of the Company financial projections
for the Iridium Business it shall promptly furnish a copy thereof to the
Administrative Agent and the Lenders, together
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with a certificate of a Responsible Officer that such projections have been
prepared by the Company in good faith on the basis of information and
assumptions that the Company believed to be reasonable as of the date of such
projections.
SECTION 8.04. Principal Project Documents.
(a) Performance of Obligations and Enforcement of Rights. The
Company will, and will cause each of its Subsidiaries to, (i) perform and
observe in all material respects all of its covenants and obligations contained
in each of the Principal Project Documents to which it is a party, (ii) take all
reasonable and necessary action to prevent the termination or cancellation of
any Principal Project Documents other than in accordance with the terms thereof
and (iii) use commercially reasonable efforts to enforce against the relevant
Transaction Party thereto each material covenant or obligation of such Principal
Project Document in accordance with its terms. Anything in the foregoing to the
contrary notwithstanding, the Company shall pay, or cause to be paid, when due,
all claims for labor, material, supplies or services (under the Principal
Project Documents or otherwise) that, if unpaid could by law result in a Lien on
the property of the Company or any Subsidiary, other than a Permitted Lien;
provided that the Company shall have the right to contest in good faith by
appropriate proceedings diligently conducted the validity or amount of such
claim, so long as adequate reserves have been established with respect thereto
in accordance with GAAP.
(b) Cancellation; Termination; Amendments, Etc. The Company will
not, without the prior consent of the Required Lenders, (i) cancel or terminate
any Principal Project Document to which it is a party or consent to or accept
any cancellation or termination thereof, (ii) sell, assign (other than pursuant
to the Security Documents) or otherwise dispose of (by operation of law or
otherwise) any part of its interest in any Principal Project Document, (iii)
waive any default under, or breach of, any Principal Project Document or waive,
fail to use commercially reasonable efforts to enforce, forgive, compromise,
settle, adjust or release any right, interest or entitlement, howsoever arising,
under, or in respect of any Principal Project Document or in any way vary, or
agree to the variation of, any provision of such Principal Project Document or
of the performance of any covenant or obligation by any Person under any
Principal Project Document, (iv) exercise any right to initiate an arbitration
proceeding under any Principal Project Document or take any action with respect
to any arbitration proceeding initiated by any other Transaction Party or
compelled by the provisions of any Principal Project Document, (v) petition,
request or take any other legal or administrative action that seeks, or may
reasonably be expected, to materially Impair any Principal Project Document,
(vi) consent, or agree to consent, to any Person party to a Principal Project
Document to assign or delegate its right under such Principal Project Document,
or (vii) amend, supplement or modify any Principal Project Document, unless (in
the case of any actions covered in clauses (i) through (vii) above) (x) the
monetary obligations of the Company or its Subsidiaries under such Principal
Project Document after giving effect to such amendment, supplement or
modification, together with any additional Costs resulting from any action under
this Section or Section 8.05, would not cause the aggregate Costs for the Budget
Period to exceed the Approved Budget Amount or (y) the performance by the
Company or any of its Subsidiaries of any non-monetary obligations under such
Project Document after giving effect to such amendment, supplement, modification
or termination could not reasonably be expected to result in a Material Adverse
Effect. Promptly
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after the execution and delivery thereof, the Company shall furnish the
Administrative Agent and the Lenders with certified copies of all amendments,
supplements or modifications of any Principal Project Document.
SECTION 8.05. Other Project Documents.
(a) Additional Project Documents; Additional Costs. The Company
will not, and will not permit any of its Subsidiaries to, enter into any Other
Project Document, or otherwise incur any other obligation or expend any amount
in respect of Costs, without the prior consent of the Required Lenders, unless
(i) the monetary obligations of the Company or such Subsidiary under such Other
Project Document or the incurrence of such obligation or the expenditure of such
amount, as the case may be, together with any additional Costs resulting from
any action under this Section or Section 8.04, would not cause the aggregate
Costs for the Budget Period to exceed the Approved Budget Amount or (ii) the
performance by the Company or such Subsidiary of any non-monetary obligations
under such Other Project Document could not reasonably be expected to result in
a Material Adverse Effect.
(b) Cancellation; Termination; Amendments, Etc. The Company will
not, without the prior consent of the Required Lenders: (i) cancel or terminate
any Other Project Document to which it is a party or consent to or accept any
cancellation or termination thereof, (ii) sell, assign (other than pursuant to
the Security Documents) or otherwise dispose of (by operation of law or
otherwise) any part of its interest in any Other Project Document, (iii) waive
any default under, or breach of, any Other Project Document or waive, fail to
enforce, forgive, compromise, settle, adjust or release any right, interest or
entitlement, howsoever arising, under, or in respect of any Other Project
Document or in any way vary, or agree to the variation of, any provision of such
Other Project Document or of the performance of any covenant or obligation by
any Person under any Project Document, (iv) exercise any right to initiate an
arbitration proceeding under any Project Document or take any action with
respect to any arbitration proceeding initiated by any other Person or compelled
by the provisions of any Other Project Document (except, in each case, upon
instructions of the Required Lenders), (v) petition, request or take any other
legal or administrative action that seeks, or may reasonably be expected, to
Impair any Other Project Document or amend, modify or supplement any Project
Document, (vi) amend, supplement or modify any Other Project Document or (vii)
consent, or agree to consent, to any Person party to any Other Project Document
assigning or delegating its rights and obligations under such Other Project
Document, unless (in the case of any of the actions covered in clauses (i)
through (vii) above) the taking of such action, or omitting to take such action,
(x) together with any additional Costs resulting from any actions under this
Section and Section 8.04, would not cause the aggregate Costs for the Budget
Period to exceed the Approved Budget Amount or (y) could not reasonably be
expected to result in a Material Adverse Effect. Upon request of the
Administrative Agent, the Company shall furnish the Administrative Agent and the
Lenders with certified copies of each Other Project Document and all amendments,
supplements or modifications thereto.
(c) Performance of Obligations and Enforcement of Rights. The
Company will, and will cause each of its Subsidiaries to, (i) perform and
observe all of its covenants and obligations contained in each of the Other
Project Documents to which it is a party, (ii) take all
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reasonable and necessary action to prevent the termination or cancellation of
any Other Project Documents other than in accordance with the terms thereof and
(iii) enforce against the relevant party thereto each covenant or obligation of
such Other Project Document other than in accordance with its terms, unless, in
the case of each of clauses (i) through (iii) above, the failure to take any
such action could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 8.06. Restoration. Subject to Section 4.02(b) of the
Depositary Agreement and Section 2.09(d), the Company shall have the right to
Restore any of its property that is the subject of an Event of Loss (whether or
not insured against or insurable), provided that in the event that the Company
elects not to restore any such property the Net Available Proceeds of such Event
of Loss (if any) shall be required to be applied in accordance with Section
2.09(d).
SECTION 8.07. Performance Standards. The Company will maintain, or
cause to be maintained, the Iridium System in a manner consistent with the
achievement of the Financial Projections, including but not limited to
Motorola's continuing performance under the O&M Contract, except to the extent
of temporary degradation in performance of the Iridium System that is either not
reasonably likely to result in a Material Adverse Effect or is cured within 20
days following the event causing such degradation; provided that there shall be
at least 68 operational satellites in orbit (or, if less than 68, 66 operational
satellites in mission orbit).
SECTION 8.08. Minimum Regulatory Approvals. The Company will
maintain, or cause to be maintained, all Government Approvals necessary for the
Company to provide satellite voice service in a sufficient number of
jurisdictions, such that the percentage of revenues under the Iridium business
plan anticipated to be generated by such jurisdictions shall be no less than (a)
72.5%, except to the extent the failure to maintain such Government Approvals
could not reasonably be expected to result in a Material Adverse Effect or (b)
66-2/3% for any period of more than 30 consecutive days.
SECTION 8.09. Motorola Guarantee Obligation.
(a) Not later than seven Business Days after the occurrence of any
Trigger Event, the Company will require Motorola to perform the Motorola
Guarantee Obligation (to the extent of a maximum amount of $300,000,000), such
performance to include the execution and delivery by Motorola of its guarantee,
in a form identical in all material respects (except as to the amount covered by
such guarantee) to the guarantee executed by Motorola in connection with the
Motorola Guaranteed Credit Agreement or otherwise as mutually agreed between all
of the Lenders and Motorola, in favor of the Administrative Agent for the
benefit of the Lenders in respect of the Borrower's obligations under this
Agreement in a maximum amount of $300,000,000 (inclusive of principal, interest
and other amounts) (the "Motorola Guarantee"). The Company agrees that at any
time prior to a termination under paragraph (b) or a release under paragraph (c)
of this Section, the Company will not, without the prior consent of the Required
Lenders, (i) direct or otherwise require Motorola to perform under the Motorola
Guarantee Obligation with respect to $300,000,000 of such obligation by
executing and delivering the Motorola Guarantee, except as contemplated by this
Section or (ii) consent to any modification, supplement or waiver of any of the
provisions of the MOU Agreements relating to the Motorola Guarantee Obligation
(but only to the extent covered by the first sentence above). The Company shall
provide the Administrative Agent with prior written notice of each proposed
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modification, supplement or waiver in respect of any MOU Agreement (and the
Administrative Agent shall promptly provide copies thereof to each Lender).
Promptly following the effectiveness of each such modification, supplement or
waiver, the Company shall provide the Administrative Agent with a copy thereof
as executed and delivered by the parties thereto (and the Administrative Agent
shall promptly provide a copy thereof to each Lender).
(b) The Company's obligation to require Motorola to provide the
Motorola Guarantee under paragraph (a) of this Section will terminate in full on
the date (the "Guarantee Obligation Termination Date") on which each of the
following conditions is satisfied:
(i) on the Guarantee Obligation Termination Date no Default shall
have occurred and be continuing; and
(ii) the Company shall have delivered to the Administrative Agent
a certificate of its chief financial officer (in form and substance
reasonably satisfactory to the Administrative Agent) (x) confirming the
Company's compliance with the requirements of Section 8.07 as of the
Guarantee Obligation Termination Date and (y) to the effect that no
Default shall have occurred and be continuing as of such date; and
(iii) the Company shall have delivered to the Administrative Agent
a certificate of its chief financial officer (in form and substance
reasonably satisfactory to the Administrative Agent) that, as of the
Guarantee Obligation Termination Date, the Company has committed or
available funding to meet all projected Costs (as set forth in the
Approved Budget and, with respect to Costs for any period not covered by
such budget, as reasonably estimated by the Company's chief financial
officer (in light of the Cost projections set forth in the Financial
Projections and other information available at the time and reasonably
considered relevant thereto) and set forth in reasonable detail in such
certificate) of the Company and its Subsidiaries to (but not including)
the Maturity Date, which funding may include projected revenues (as so
estimated by the Company's chief financial officer in light of historical
performance of the Iridium Business and other factors reasonably
considered relevant at such time, and set forth in reasonable detail in
such certificate) and additional Indebtedness permitted to be (but not
theretofore) incurred under Sections 7.01(b), (c) and (d) that would be
guaranteed by Motorola; and
either
(iv) the Company shall have received proceeds from Equity
Issuances (other than Equity Issuances referred to in clauses (a) and (b)
of the definition of "Excluded Equity Issuances" and any Equity Issuance
resulting from the exercise of the Reserve Capital Call Obligations)
after the Closing Date and prior to February 28, 1999 of at least
$250,000,000 (less reasonable underwriting fees) (and the Company shall
have delivered to the Administrative Agent a certificate of its chief
financial officer to such effect (in form and substance reasonably
satisfactory to the Administrative Agent)); or
(v) (x) the Company shall have received proceeds from Equity
Issuances (other than any Equity Issuance referred to in clauses (a) and
(b) of the definition of "Excluded Equity Issuance" and any Equity
Issuance resulting from the exercise of the Reserve
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Capital Call Obligations) after the Closing Date and prior to February
28, 1999 of at least $150,000,000 (less reasonable underwriting fees) and
either (y) together with the proceeds included under subclause (x) above,
the Company shall have received proceeds from such Equity Issuances after
the Closing Date of at least $250,000,000 (less reasonable underwriting
fees) or (z) Cumulative Adjusted Accrued Revenues as at the last day of
any month specified below (or any month prior thereto) shall be at least
equal to the amount set forth opposite such specified month (and the
Company shall have delivered to the Administrative Agent a certificate of
its chief financial officer to such effect (in form and substance
reasonably satisfactory to the Administrative Agent)):
Month Minimum Cumulative
----- ------------------
(1999) Adjusted Accrued Revenues
----- -------------------------
June $265,000,000
July 350,000,000
August 425,000,000
(c) Following the execution and delivery of the Motorola Guarantee
under paragraph (a) of this Section, the Motorola Guarantee will thereafter be
released in full on the date (the "Guarantee Obligation Release Date") on which
each of the following conditions is satisfied (and the Administrative Agent is
hereby authorized to effect such release upon the satisfaction of such
conditions without further consent of the Lenders):
(i) on the Guarantee Obligation Release Date no Default shall have
occurred and be continuing; and
(ii) the Company shall have delivered to the Administrative Agent
a certificate of its chief financial officer (in form and substance
reasonably satisfactory to the Administrative Agent) (x) confirming the
Company's compliance with the requirements of Section 8.07 as of the
Guarantee Obligation Release Date and (y) to the effect that no Default
shall have occurred and be continuing as of such date; and
(iii) the Company shall have delivered to the Administrative Agent
a certificate of its chief financial officer (in form and substance
reasonably satisfactory to the Administrative Agent) that, as of the
Guarantee Obligation Release Date, the Company has committed or available
funding to meet all projected Costs (as set forth in the Approved Budget
and, with respect to Costs for any period not covered by such budget, as
reasonably estimated by the Company's chief financial officer (in light
of the Cost projections set forth in the Financial Projections and other
information available at the time and reasonably considered relevant
thereto) and set forth in reasonable detail in such certificate) of the
Company and its Subsidiaries to (but not including) the Maturity Date,
which funding may include projected revenues (in light of historical
performance of the Iridium Business and other factors reasonably
considered relevant, and set forth in reasonable detail in such
certificate) and additional Indebtedness permitted to be (but not
theretofore) incurred under Sections 7.01(b), (c) and (d) that would be
guaranteed by Motorola; and
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(iv) the Company shall have received proceeds from Equity
Issuances (other than Equity Issuances referred to in clauses (a) and (b)
of the definition of "Excluded Equity Issuances") and any Equity Issuance
resulting from the exercise of the Reserve Capital Call Obligations)
after the Closing Date of at least $250,000,000 (less reasonable
underwriting fees) (and the Company shall have delivered to the
Administrative Agent a certificate of its chief financial officer to such
effect (in form and substance reasonably satisfactory to the
Administrative Agent)); and
(v) Cumulative Adjusted Accrued Revenues as at the last day of any
month specified below (or any month prior thereto) shall be at least
equal to the amount set forth opposite such specified month (and the
Company shall have delivered to the Administrative Agent a certificate of
its chief financial officer to such effect (in form and substance
reasonably satisfactory to the Administrative Agent)):
Month Minimum Cumulative
----- ------------------
(1999) Adjusted Accrued Revenues
----- -------------------------
June $265,000,000
July 350,000,000
August 425,000,000
Prior to the release of the Motorola Guarantee under this paragraph (c), the
maximum amount of the Motorola Guarantee will be reduced from time to time on a
ratable basis with any prepayments of the Loans pursuant to Section 2.08 or
2.09.
ARTICLE IX
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall occur:
SECTION 9.01. Iridium Events of Defaults.
(a) the Company shall fail to pay any principal of any Loan when
and as the same shall become due and payable, whether at the due date thereof or
at a date fixed for prepayment thereof or otherwise; or
(b) the Company shall fail to pay any interest on any Loan or any
fee under this Agreement or under any other Credit Document when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise and such default shall continue unremedied
for three or more Business Days; or
(c) the Company shall fail to pay any other amount (other than the
amounts covered under clause (a) or (b) above) payable under this Agreement or
under any other Credit Document when and as the same shall become due and
payable, whether at the due date thereof
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or at a date fixed for prepayment thereof or otherwise and such default shall
continue unremedied for fifteen or more days; or
(d) any representation or warranty made or deemed made by the
Company or any of its Subsidiaries or Iridium LLC in or pursuant to this
Agreement or any other Credit Document to which it is a party or any amendment
or modification hereof or thereof, or in any report, certificate, financial
statement or other document furnished pursuant to or in connection with this
Agreement or any other Credit Document or any amendment or modification hereof
or thereof, shall prove to have been incorrect in any material respect when made
or deemed made; or
(e) the Company shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02(a) or 6.01 (with respect to the
Company's existence) or in Article VII (other than Sections 7.06 and 7.09) or
VIII (other than Section 8.01); or
(f) the Company shall default in the performance of any of its
obligations contained in Section 4.01(d) of the Depositary Agreement; after the
Closing Date the Company or any other Credit Party shall default in the
performance of any of its obligations contained in Section 4.04(d) of the
Security Agreement; or
(g) any Credit Party or Iridium LLC shall fail to observe or
perform any covenant, condition or agreement contained in this Agreement (in the
case of the Company) (other than those specified in clauses (a) through (f)
above (inclusive) of this Section) or any other Credit Document to which it is a
party and such failure shall continue unremedied for a period of 30 days after
notice thereof from the Administrative Agent (given at the request of any
Lender) to the Company; or
(h) the Company or any of its Subsidiaries or Iridium LLC shall
default in the payment when due (after the expiration of applicable grace
periods) of any principal of or interest on any of its other Indebtedness having
an outstanding principal amount of $10,000,000 individually or in the aggregate;
or any event specified in any note, agreement, indenture or other document
evidencing or relating to any such Indebtedness shall occur if the effect of
such event is to cause, or (with the giving of any notice or the lapse of time
or both) to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause, such Indebtedness to become
due, or to be prepaid in full (whether by redemption, purchase, offer to
purchase or otherwise), prior to its stated maturity or to have the interest
rate thereon reset to a level so that securities evidencing such Indebtedness
trade at a level specified in relation to the par value thereof; or
(i) the Company or one or more of its Subsidiaries or Iridium LLC
shall (i) apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee, examiner or liquidator of itself
or of all or a substantial part of its Property, (ii) make a general assignment
for the benefit of its creditors, (iii) commence a voluntary case under the U.
S. Bankruptcy Code, (iv) file a petition seeking to take advantage of any other
law relating to bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement or winding-up, or composition or readjustment of debts,
(v) fail to controvert in a timely and appropriate manner, or acquiesce in
writing to, any petition filed against it in an involuntary case
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under the U.S. Bankruptcy Code or (vi) take any corporate or other analogous
action for the purpose of effecting any of the foregoing; or
(j) a proceeding or case shall be commenced, without the
application or consent of the Company or one or more Subsidiaries or Iridium LLC
in any court of competent jurisdiction, seeking (i) its reorganization,
liquidation, dissolution, arrangement or winding-up, or the composition or
readjustment of its debts, (ii) the appointment of a receiver, custodian,
trustee, examiner, liquidator or the like of the Company or such Subsidiary or
Iridium LLC, as the case may be, or of all or any substantial part of its
Property or (iii) similar relief in respect of the Company or such Subsidiary or
Iridium LLC, as the case may be, under any law relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or adjustment of debts,
and such proceeding or case shall continue undismissed, or an order, judgment or
decree approving or ordering any of the foregoing shall be entered and continue
unstayed and in effect, for a period of 60 or more days; or an order for relief
against the Company or one or more Subsidiaries or Iridium LLC shall be entered
in an involuntary case under the U.S. Bankruptcy Code; or
(k) a final judgment or judgments for the payment of money of
$10,000,000 or more in the aggregate (exclusive of judgment amounts fully
covered by insurance where the insurer has admitted liability in respect of such
judgment) shall be rendered by one or more courts, administrative tribunals or
other bodies having jurisdiction against the Company or any of its Subsidiaries
or Iridium LLC and the same shall not be discharged (or provision shall not be
made for such discharge), or a stay of execution thereof shall not be procured,
within 30 days from the date of entry thereof and the Company, the relevant
Subsidiary or Iridium LLC, as the case may be, shall not, within said period of
30 days, or such longer period during which execution of the same shall have
been stayed, appeal therefrom and cause the execution thereof to be stayed
during such appeal; or
(l) an ERISA Event shall have occurred which, when taken together
with all other ERISA Events that have occurred, could reasonably be expected to
result in a Material Adverse Effect; or
(m) the Company or any of its Subsidiaries or Iridium LLC shall be
terminated, dissolved or liquidated (as a matter of law or otherwise) or
proceedings shall be commenced by any Person (including the Company) seeking the
termination, dissolution or liquidation of the Company or such Subsidiary or
Iridium LLC, as the case may be, other than as permitted under Section 7.03; or
(n) an Environmental Claim arising with respect to the Iridium
Business shall have been asserted against the Iridium Business or any Credit
Party or Iridium LLC which could reasonably be expected to result in a Material
Adverse Effect; or
(o) the Company or any of its Subsidiaries shall fail to obtain
(or obtain the benefit of), renew, maintain or comply in all material respects
with the FCC License (from and after the transfer thereof by Motorola to the
Company pursuant to the Space System Contract), any other Telecommunications
Approval or any other Government Approval required for the Iridium Business; or
the FCC License (from and after the transfer thereof by Motorola to the Company
pursuant to the Space System Contract) or any such Telecommunications Approval
or
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any other Government Approval shall be materially Impaired in whole or in
part or shall cease to be in full force and effect; or any action, suit,
proceeding or investigation shall be commenced by or before any Government
Authority which could reasonably be expected to result in such Impairment and
(in any case) such Impairment could reasonably be expected to result in a
Material Adverse Effect; or
(p) the Liens created by the Security Documents shall at any time
after the Closing Date not constitute a valid and perfected Lien on the
Collateral intended to be covered thereby (to the extent perfection by filing,
registration, recordation or possession is required herein or therein) in favor
of the Collateral Agent, free and clear of all other Liens (other than Permitted
Liens); or
(q) any material provision of any Credit Document or Principal
Project Document to which any Credit Party or Iridium LLC is a party shall at
any time for any reason cease to be valid and binding or in full force and
effect (except, in the case of any of the Credit Documents, for expiration or
termination in accordance with its respective terms); or any such Credit
Document or Principal Project Document shall be materially Impaired in whole or
part; or the validity or enforceability of any such Credit Document or Principal
Project Document shall be contested by any Credit Party or Iridium LLC, as the
case may be; or any Credit Party shall deny that it has any or further liability
or obligation under any such Credit Document or Principal Project Document; or
(r) any material provision of any Transaction Document to which
any Credit Party or Iridium LLC is a party shall at any time for any reason
cease to be valid and binding or in full force and effect; or any such
Transaction Document shall be Impaired in whole or part; or the validity or
enforceability of any such Transaction Document shall be contested by any Credit
Party or Iridium LLC; or any Credit Party or Iridium LLC shall deny that it has
any or further liability or obligation under any such Transaction Document; and
(in any case) such event could reasonably be expected to result in a Material
Adverse Effect; or
(s) Iridium LLC shall cease to be the sole member of the Company
or any Subsidiary of the Company shall cease to be a Wholly Owned Subsidiary;
SECTION 9.02. Motorola Events of Default.
(a) any representation or warranty made or deemed made by Motorola
in or pursuant to any Motorola Agreement or any amendment or modification
thereof, or in any report, certificate, financial statement or other document
furnished by Motorola pursuant thereto or in connection therewith shall prove to
have been incorrect in any material respect when made or deemed made; or
(b) Motorola shall fail to observe or perform any covenant,
condition or agreement contained in Articles IV, V and VI of the Motorola
Consent; or
(c) Motorola shall fail to observe or perform any material
covenant, condition or agreement (including, without limitation, any payment
obligation of Motorola) contained in any of the Motorola Agreements or the
Principal Project Documents to which Motorola is a party
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(other than those specified in clause (a) and (b) above of this Section) and
such failure shall continue unremedied for a period of 30 days after notice
thereof from the Administrative Agent (given at the request of any Lender) to
the Company and Motorola; or
(d) Motorola or any of the Motorola Domestic Subsidiaries shall
(i) apply for or consent to the appointment of, or the taking of possession by,
a receiver, custodian, trustee, examiner or liquidator of itself or of all or a
substantial part of its property, (ii) make a general assignment for the benefit
of its creditors, (iii) commence a voluntary case under the U. S. Bankruptcy
Code, (iv) file a petition seeking to take advantage of any other law relating
to bankruptcy, insolvency, reorganization, liquidation, dissolution, arrangement
or winding-up, or composition or readjustment of debts, (v) fail to controvert
in a timely and appropriate manner, or acquiesce in writing to, any petition
filed against it in an involuntary case under the U.S. Bankruptcy Code or (vi)
take any corporate or other analogous action for the purpose of effecting any of
the foregoing; or
(e) a proceeding or case shall be commenced, without the
application or consent of Motorola, against Motorola or any of the Motorola
Domestic Subsidiaries, in any court of competent jurisdiction, seeking (i) its
reorganization, liquidation, dissolution, arrangement or winding-up, or the
composition or readjustment of its debts, (ii) the appointment of a receiver,
custodian, trustee, examiner, liquidator or the like of Motorola or such
Motorola Domestic Subsidiary or of all or any substantial part of its property
or (iii) similar relief in respect of Motorola or such Motorola Domestic
Subsidiary under any law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts, and such proceeding or case
shall continue undismissed, or an order, judgment or decree approving or
ordering any of the foregoing shall be entered and continue unstayed and in
effect, for a period of 60 or more days; or an order for relief against Motorola
or such Motorola Domestic Subsidiary shall be entered in an involuntary case
under the U.S. Bankruptcy Code; or
(f) Motorola or any of the Motorola Domestic Subsidiaries shall
admit in writing its inability to, or be generally unable to, pay its debts as
such debts become due; or
(g) Motorola or any of the Motorola Domestic Subsidiaries shall
default in the payment when due (after the expiration of applicable grace
periods) of any principal of or interest on any of its Indebtedness aggregating
in amount at least equal to 3% of the amount of total stockholders' equity for
Motorola and its consolidated Subsidiaries (determined on a consolidated basis
without duplication in accordance with generally accepted accounting principles)
as at the last day of the most recently completed fiscal quarter of Motorola
("Motorola's Net Worth"); or any event specified in any note, agreement,
indenture or other document evidencing or relating to any such Indebtedness
shall occur if the effect of such event is to cause, or (with the giving of any
notice or the lapse of time or both) to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause, such Indebtedness to become due, or to be prepaid in full (whether by
redemption, purchase, offer to purchase or otherwise), prior to its stated
maturity or to have the interest rate thereon reset to a level so that
securities evidencing such Indebtedness trade at a level specified in relation
to the par value thereof; or
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(h) a final judgment or judgments for the payment of money in
excess of 3% of Motorola's Net Worth (exclusive of judgment amounts fully
covered by insurance where the insurer has admitted liability in respect of such
judgment) shall be rendered by one or more courts, administrative tribunals or
other bodies having jurisdiction against the Motorola or any of the Motorola
Domestic Subsidiaries and the same shall not be discharged (or provision shall
not be made for such discharge), or a stay of execution thereof shall not be
procured, within 60 days from the date of entry thereof and Motorola or the
relevant Motorola Domestic Subsidiary shall not, within said period of 60 days,
or such longer period during which execution of the same shall have been stayed,
appeal therefrom and cause the execution thereof to be stayed during such
appeal; or
(i) prior to the transfer of the FCC License to the Company
pursuant to the Space System Contract, Motorola shall fail to obtain, renew,
maintain or comply in all material respects with the FCC License or the FCC
License shall be materially Impaired or shall cease to be in full force and
effect; or any action, suit, proceeding or investigation shall be commenced by
or before any Government Authority which could reasonably be expected to result
in such Impairment and (in any case) such Impairment could reasonably be
expected to result in a Material Adverse Effect; or
(j) at any time after the execution and delivery of the Motorola
Pledge Agreement but prior to the transfer of the FCC License by Motorola to the
Company pursuant to the Space System Contract, the Liens created by the Motorola
Pledge Agreement shall cease to constitute a valid and perfected Lien on the
Collateral intended to be covered thereby (to the extent perfection by filing,
registration, recordation or possession is required herein or therein) in favor
of the Collateral Agent, free and clear of all other Liens; or
(k) any material provision of any Motorola Agreement or any
Principal Project Document to which Motorola is a party shall at any time for
any reason cease to be valid and binding or in full force and effect (except for
termination thereof pursuant to its respective terms, other than as a result of
a default or breach by any party thereto); or any Motorola Agreement (excluding
the Motorola Pledge Agreement, prior to the date of the execution and delivery
thereof) or any such Principal Project Document shall be materially Impaired in
whole or part (except for termination thereof pursuant to its respective terms,
other than as a result of a default or breach by any party thereto); or the
validity or enforceability of any Motorola Agreement (excluding the Motorola
Pledge Agreement, prior to the date of execution and delivery thereof) or any
such Principal Project Document shall be contested by Motorola; or Motorola
shall deny that it has any or further liability or obligation under any Motorola
Agreement (excluding the Motorola Pledge Agreement, prior to the date of
execution and delivery thereof) or any such Principal Project Document (except
after termination thereof pursuant to its respective terms, other than as a
result of a default or breach by any party thereto); or
(l) any gateway equipment purchase agreement and/or agreement for
the manufacture and delivery of handsets and/or paging units shall at any time
for any reason (except for termination thereof pursuant to its respective terms,
other than as a result of a default or breach by any party thereto) cease to be
valid and binding or in full force and effect, or the validity or enforceability
of any such agreement shall be contested by Motorola or Motorola shall
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deny that it has any or further liability or obligation under any such
agreement, and (in any case) such event could reasonably be expected to result
in a Material Adverse Effect.
SECTION 9.03. Other Transaction Parties' Events of Default.
(a) any Transaction Party (other than the Credit Parties, Iridium
LLC, Motorola and the Secured Parties) (each an "Other Transaction Party") shall
fail to pay to the Company or any of its Subsidiaries when due any amount
payable by such Other Transaction Party under any Transaction Document to which
it is a party or any Iridium LLC Member shall fail to pay when due any amount in
respect of its Reserve Capital Call Obligations; or
(b) any representation or warranty made or deemed made by any
Other Transaction Party in or pursuant to any Transaction Document to which it
is a party or any amendment or modification thereof, or in any report,
certificate, financial statement or other document furnished pursuant to or in
connection with this Agreement or any such Transaction Document or any amendment
or modification hereof or thereof, shall prove to have been incorrect in any
material respect when made or deemed made; or
(c) any Other Transaction Party shall fail to observe or perform
any covenant, condition or agreement contained in any Transaction Document to
which it is a party and such failure shall continue unremedied for a period of
30 days after notice thereof from the Administrative Agent (given at the request
of any Lender) to the Company and such Other Transaction Party; or
(d) a proceeding or case shall be commenced, without the
application or consent of any Other Transaction Party or its parent company in
any court of competent jurisdiction, seeking (i) its reorganization,
liquidation, dissolution, arrangement or winding-up, or the composition or
readjustment of its debts, (ii) the appointment of a receiver, custodian,
trustee, examiner, liquidator or the like of such Other Transaction Party or of
all or any substantial part of its property or (iii) similar relief in respect
of such Other Transaction Party under any law relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or adjustment of debts,
and such proceeding or case shall continue undismissed, or an order, judgment or
decree approving or ordering any of the foregoing shall be entered and continue
unstayed and in effect, for a period of 60 or more days; or an order for relief
against such Other Transaction Party shall be entered in an involuntary case
under applicable law; or
(e) any Other Transaction Party shall fail to obtain, renew,
maintain or comply in all material respects with any Telecommunications Approval
or any other Government Approval that is required by the terms of any
Transaction Document to which it is a party to be obtained and/or maintained by
such Other Transaction Party and is necessary for the Iridium Business; or any
such Telecommunications Approval or any such other Government Approval shall be
Impaired or shall cease to be in full force and effect; or any action, suit,
proceeding or investigation shall be commenced by or before any Government
Authority which could reasonably be expected to result in such Impairment and
such action, suit or proceeding is reasonably likely to be successful; or
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(f) any material provision of any Transaction Document to which
any Other Transaction Party is a party shall at any time for any reason cease to
be valid and binding or in full force and effect; or any such Transaction
Document shall be Impaired in whole or part; or the validity or enforceability
of any such Transaction Document shall be contested by any Other Transaction
Party or any Government Authority; or any Other Transaction Party shall deny
that it has any or further liability or obligation under any such Transaction
Document;
provided that, in the case of each event under this Section 9.03, such event
shall not be an Event of Default unless the occurrence of such event could
reasonably be expected to result in a Material Adverse Effect;
SECTION 9.04. Other Events of Default.
(a) an announcement by the Company of a decision to abandon or
indefinitely defer the operation of the Iridium System or the abandonment or
indefinite deferral of the operation of the Iridium System; or
(b) a material portion of the Iridium System shall be permanently
condemned or seized or title thereto shall be permanently requisitioned or taken
by any Government Authority under power of eminent domain or otherwise; or a
material portion of the Iridium System shall be temporarily condemned or seized
or title thereto shall be temporarily requisitioned or taken by any Government
Authority under power of eminent domain or otherwise and such temporary
condemnation, seizure, requisition or taking shall last for at least 90 days and
could reasonably be expected to result in a Material Adverse Effect; or
(c) any Event of Loss (other than under Section 9.04(b)) shall
have occurred with respect to a material portion of the Iridium satellite
constellation or the Iridium Business and such Event of Loss could reasonably be
expected to result in a Material Adverse Effect;
then, and in every such event under Sections 9.01, 9.02, 9.03 and 9.04 (other
than an event with respect to any Credit Party or Iridium LLC described in
clause (i) or (j) of Section 9.01, and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to the Company, take any one or more of
the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately; and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Credit Parties accrued hereunder and under the
other Credit Documents, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each Credit Party, and in case of any event with respect to any
Credit Party or Iridium LLC described in such clause (i) or (j), the Commitments
shall automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of the
Credit Parties accrued hereunder, shall automatically become due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by each Credit Party.
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ARTICLE X
THE AGENTS AND GLOBAL LEAD ARRANGERS
Each of the Lenders hereby irrevocably appoints (a) the
Administrative Agent as its agent hereunder and under the other Credit Documents
to which it is a party and authorizes the Administrative Agent to take such
actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto and (b) the Collateral Agent as
its agent under the Credit Documents to which it is a party and authorizes the
Collateral Agent to take such actions on its behalf and to exercise such powers
as are delegated to the Collateral Agent by the terms thereof, together with
such actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent or the Collateral
Agent hereunder or thereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it
were not the Administrative Agent or Collateral Agent (as the case may be), and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Company or any Subsidiary or
other Affiliate thereof as if it were not the Administrative Agent or Collateral
Agent (as the case may be) hereunder.
None of the Agents shall have any duties or obligations except
those expressly set forth herein and in the other Credit Documents. Without
limiting the generality of the foregoing, (a) no Agent shall be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred
and is continuing, (b) no Agent shall have any duty to take any discretionary
action or exercise any discretionary powers, except discretionary rights and
powers expressly contemplated hereby or by the other Credit Documents that (in
the case of the Administrative Agent or the Collateral Agent) such Agent is
required to exercise in writing by the Required Lenders, and (c) except as
expressly set forth herein and in the other Credit Documents, no Agent shall
have any duty to disclose, nor shall any Agent be liable for the failure to
disclose, any information relating to the Company or any of its Subsidiaries
that is communicated to or obtained by the bank serving as an Agent or any of
its Affiliates in any capacity. None of the Agents shall be liable for any
action taken or not taken by it with the consent or at the request of the
Required Lenders or in the absence of its own gross negligence or willful
misconduct. None of the Agents shall be deemed to have knowledge of any Default
unless and until written notice thereof is given to such Agent by the Company or
a Lender. The Administrative Agent shall take such action with respect to such
Default as shall be directed by the Required Lenders, provided that (i) unless
and until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default as it shall deem
advisable in the best interest of the Lenders except to the extent that this
Agreement expressly requires that such action be taken, or not taken, only with
the consent or upon the authorization of the Required Lenders or all of the
Lenders and (ii) except for action expressly required of the Administrative
Agent hereunder, the Administrative Agent shall in all cases be fully justified
in failing or refusing to take such action unless it shall receive further
assurances to its satisfaction from the Lenders of their indemnification
obligations under Section 11.03(c) against any and all
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liability and expense that may be incurred by it by reason of taking or
continuing to take any such action. None of the Agents shall be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement or any other Credit
Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii)
the performance or observance of any of the covenants, agreements or other terms
or conditions set forth herein or therein, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Credit Document or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein or therein, other than (in
the case of the Administrative Agent) to confirm receipt of items expressly
required to be delivered to the Administrative Agent. Notwithstanding anything
herein to the contrary (except as provided in Section 11.12(b)), none of the
Documentation Agent or the Global Lead Arrangers, in their respective capacities
as such, shall have any duties, responsibilities or liabilities whatsoever under
this Agreement or the other Credit Documents.
Each Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. Each Agent also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. Each Agent may consult with legal counsel (who may be counsel for a
Credit Party), independent accountants and other experts selected by the
Administrative Agent, and shall not be liable for any action taken or not taken
by it in accordance with the advice of any such counsel, accountants or experts.
Each Agent may perform any and all of its duties and exercise its
rights and powers by or through any one or more sub-agents appointed by it in
good faith. Each Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers through their respective Related
Parties. The exculpatory provisions of the preceding paragraphs shall apply to
any such sub-agent and to the Related Parties of each Agent and any such
sub-agent, and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent or Collateral Agent as provided in this paragraph, the
Administrative Agent or the Collateral Agent may resign at any time by notifying
the Lenders and the Company. Upon any such resignation, the Required Lenders
shall have the right to appoint a successor thereto with the prior consent of
the Company (which consent shall not be unreasonably withheld or delayed). If no
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent
or Collateral Agent (as the case may be) gives notice of its resignation, then
the retiring Administrative Agent or Collateral Agent (as the case may be) may,
on behalf of the Lenders, appoint a successor Administrative Agent or Collateral
Agent (as the case may be) which shall be a bank with an office in New York, New
York with a combined capital and surplus of at least $500,000,000, or an
Affiliate of any such bank. Upon the acceptance of its appointment as
Administrative Agent or Collateral Agent (as the case may be) hereunder by a
successor, such successor shall succeed to and become vested
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with all the rights, powers, privileges and duties of the retiring
Administrative Agent or Collateral Agent (as the case may be) and the retiring
Administrative Agent or Collateral Agent (as the case may be) shall be
discharged from its duties and obligations hereunder. The fees payable by the
Company to a successor Administrative Agent or Collateral Agent (as the case may
be) shall be the same as those payable to its predecessor unless otherwise
agreed between the Company and such successor. After the Administrative Agent's
or Collateral Agent's (as the case may be) resignation hereunder, the provisions
of this Article and Section 11.03 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Administrative Agent or Collateral Agent (as the case may be).
Each Lender acknowledges that it has, independently and without
reliance upon the Agents, the Global Lead Arrangers or any other Lender and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agents,
the Global Lead Arrangers or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Credit Document or any related agreement or any document furnished
hereunder or thereunder.
Except as otherwise provided in Section 11.02(b) with respect to
this Agreement, the Administrative Agent and/or the Collateral Agent (as the
case may be) may, with the prior consent of the Required Lenders (but not
otherwise), consent to any modification, supplement or waiver under any of the
Credit Documents or grant any consent thereunder, provided that, without the
prior consent of each Lender, the Administrative Agent and/or Collateral Agent
(as the case may be) shall not (except as provided herein or in the Security
Documents) (i) release all or any part of the Collateral or otherwise terminate
any Lien relating thereto under any Security Document providing for collateral
security, (ii) agree to additional obligations being secured by such Collateral
or alter the relative priorities of the obligations entitled to the benefits of
the Liens created under the Security Documents, (iii) release any Subsidiary
Guarantor under the Subsidiary Guarantee Agreement from its guarantee
obligations thereunder or (iv) without limiting any of the foregoing clauses,
agree to any modification or the termination or release of the Reserve Capital
Call Obligations or (from and after the issuance of the Motorola Guarantee
pursuant to Section 8.09(a)) the Motorola Guarantee (except for the termination
or release thereof in accordance with the terms thereof or as expressly provided
herein or in the Security Agreement), except that no such consent shall be
required, and the Administrative Agent or Collateral Agent (as the case may be)
is hereby authorized, to release any Lien covering property and/or to release
any such Subsidiary Guarantor that is the subject of either a disposition of
property permitted hereunder or a disposition to which the Required Lenders have
consented.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other
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communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Company, to:
Iridium Operating LLC
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: General Counsel
(Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to the Administrative Agent, to:
The Chase Manhattan Bank
Loan and Agency Services Group
1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Winslowe Ogbourne
(Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇);
with a copy to:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(Telecopy No.: (212) 270-2740/(212) 270-1724);
(c) if to a Lender, to it at its address (or telecopy number) set
forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 11.02. Waivers; Amendments.
(a) No failure or delay by any Agent or any Lender in exercising
any right or power hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Agents and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by any Credit Party
therefrom shall in any event
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be effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan shall not be construed as a waiver of any
Default, regardless of whether any Agent or any Lender may have had notice or
knowledge of such Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Company and the Required Lenders or by the Company and the
Administrative Agent with the consent of the Required Lenders; provided that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the prior written consent of each Lender affected thereby, (iii)
postpone the scheduled date of payment (including any payment under Section
2.09) of the principal amount of any Loan, or any interest thereon, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment, without the written
consent of each Lender affected thereby, (iv) change Section 2.16(b) or (c) in a
manner that would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender, (v) change any of the provisions of
this Section or the definition of the term "Required Lenders" or any other
provision hereof specifying the number or percentage of Lenders required to
waive, amend or modify any rights hereunder or make any determination or grant
any consent hereunder, without the written consent of each Lender or (vi) waive
or modify Section 8.09; provided, further, that no such agreement shall amend,
modify or otherwise affect the rights or duties of any Agent hereunder or under
any other Credit Document without the prior written consent of such Agent.
SECTION 11.03. Expenses; Indemnity; Damage Waiver.
(a) The Company shall pay (i) all reasonable out-of-pocket
expenses incurred by the Global Lead Arrangers and the Agents, including the
reasonable fees, charges and disbursements of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇,
special New York counsel to the Global Lead Arrangers and the Agents, in
connection with the syndication of the credit facilities provided for herein,
the preparation, negotiation, execution, delivery and administration of this
Agreement and the other Credit Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by any Agent or any Lender, including the fees,
charges and disbursements of such special New York counsel and/or any other
counsel selected by the Global Lead Arrangers, the Agents or the Required
Lenders, in connection with the enforcement or protection of its rights in
connection with this Agreement and the other Credit Documents, including its
rights under this Section, or in connection with the Loans made hereunder,
including in connection with any workout, restructuring or negotiations in
respect thereof, (iii) all reasonable out-of-pocket costs and expenses of the
Administrative Agent (including the fees, charges and disbursements of said
special New York counsel) incurred in connection with the negotiation,
preparation, execution and delivery of any waiver or amendment of, or supplement
or modification to, any of the Credit Documents, (iv) and all reasonable costs,
expenses, taxes, assessments and other charges incurred in connection with any
filing,
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registration, recording or perfection of any security interest contemplated by
any Security Document or any other document referred to therein and (v) all
transfer, stamp, documentary or other similar taxes, assessments or charges, if
any, upon any of the Credit Documents.
(b) The Company shall indemnify the Global Lead Arrangers, the
Agents and each Lender, and each Related Party of any of the foregoing Persons
(each such Person being called an "Indemnitee") against, and to hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or the consummation
of the transactions contemplated hereby, (ii) any Loan or the use of the
proceeds therefrom, (iii) any actual or alleged presence or Release of Hazardous
Materials on or from any property owned or operated by the Company or any of its
Subsidiaries, or any Environmental Claim related in any way to the Company or
any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee.
(c) To the extent that the Company fails to pay any amount
required to be paid by it to any Agent under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to such Agent such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against such Agent in its capacity as such (except to the extent arising from
the gross negligence or willful misconduct of such Agent).
(d) To the extent permitted by applicable Government Rule, the
Company shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly
after written demand therefor.
SECTION 11.04. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Company may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by the Company
without such consent shall be null and void). Nothing in this Agreement,
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expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, the Related Parties of each of
the Administrative Agent and the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that
(i) except in the case of an assignment to a Lender or an affiliate of a Lender
or, in the case of a Lender that is an investment fund, to another investment
fund with the same investment advisor as such Lender, each of the Company and
the Administrative Agent must give their prior written consent to such
assignment (which consent shall not be unreasonably withheld), (ii) except in
the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender's Commitment,
the amount of the Commitment of the assigning Lender subject to each such
assignment shall not be less than $5,000,000 and, after giving effect to such
assignment, the assigning Lender's Commitment and Loans shall not be less than
$5,000,000, in each case determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent, unless
each of the Company and the Administrative Agent otherwise consent, (iii) each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations under this Agreement, (iv) the
parties to each assignment shall execute and deliver to the Administrative Agent
an Assignment and Acceptance, together with a processing and recordation fee of
$3,500 for such assignment (except that in the case of contemporaneous
assignments to assignees that are investment funds with the same investment
advisor, such fee shall be payable with respect to one assignment only), and (v)
the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire; provided, further, that any consent of
the Company otherwise required under this paragraph shall not be required if an
Event of Default under clause (j) of Section 9.01 has occurred and is
continuing. Upon acceptance and recording pursuant to paragraph (d) of this
Section, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.13,
2.14, 2.15 and 11.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section.
(c) The Administrative Agent, acting for this purpose as an agent
of the Company, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the
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Register shall be conclusive, and the Company, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Company and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Company or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement and the other Credit Documents (including all or a portion
of its Commitment and the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement and the other Credit Documents shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Company, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Credit Documents. Any agreement
or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement
and the other Credit Documents and to approve any amendment, modification or
waiver of any provision of this Agreement or any other Credit Document; provided
that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 11.02(b) that affects such
Participant. The Company agrees that each Participant shall be entitled to the
benefits of Sections 2.13, 2.14 and 2.15 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section, provided that (i) a Participant shall not be entitled to receive
any greater payment under Section 2.13 or 2.15 than the applicable Lender would
have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Company's prior written consent and (ii) a Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 2.15 unless the Company is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Company, to
comply with Section 2.15(e) as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any such pledge or assignment to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment of a
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security interest shall release a Lender from any of its obligations hereunder
or substitute any such assignee for such Lender as a party hereto.
(g) A Lender may furnish any information concerning the Company
(or any of its Subsidiaries and affiliates) or the Iridium Business in the
possession of such Lender from time to time to assignees and Participants
(including prospective assignees and Participants), subject, however, to the
provisions of Section 11.12(b).
(h) Anything in this Section to the contrary notwithstanding, no
Lender may assign or participate any interest in any Loan held by it hereunder
to the Company (or any of its Subsidiaries or affiliates) without the prior
consent of each Lender.
SECTION 11.05. Survival. All covenants, agreements,
representations and warranties made by the Company herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this Agreement and the
making of any Loans, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent or any
Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.13, 2.14, 2.15, 3.03, 11.03
and 11.12(b) and Article X shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Commitments or the
termination of this Agreement or any provision hereof.
SECTION 11.06. Counterparts; Effectiveness; Integration. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. Except as provided
in Section 4.01, this Agreement shall become effective when the Administration
Agent shall have received counterparts hereof which, when taken together, bear
the signatures of each of the parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement. This Agreement and any separate letter
agreements with respect to fees payable to the Global Lead Arrangers and/or the
Agents constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof.
SECTION 11.07. Severability. Any provision of this Agreement held
to be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
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SECTION 11.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of any Credit Party against any of and all the
obligations of any Credit Party now or hereafter existing under this Agreement
held by such Lender, irrespective of whether or not such Lender shall have made
any demand under this Agreement and although such obligations may be unmatured.
The rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 11.09. Governing Law; Jurisdiction; Consent to Service of
Process.
(a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) The Company hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement or any other Credit Document to which it is a party, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent or any Lender may otherwise have to bring
any action or proceeding relating to this Agreement against the Company or its
properties in the courts of any jurisdiction.
(c) The Company hereby irrevocably appoints CT Corporation (the
"Process Agent") with an office on the date hereof at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its agent to receive on behalf of it and its property service
of copies of the summons and complaint and any other process which may be served
in any such suit, action or proceeding. Such service may be made by mailing or
delivering a copy of such process to the Company, in care of the Process Agent
at the Process Agent's above address and the Company hereby irrevocably
authorizes and directs the Process Agent to receive such service on its behalf.
The Administrative Agent and each Lender agree to mail to the Company at its
address provided under Section 11.01 a copy of any summons, complaint, or other
process mailed or delivered by it to the Company in care of the Process Agent.
As an alternate method of service, the Company also irrevocably consents to the
service of any and all process in any such suit, action or proceeding by mailing
of copies of such process to it at its address provided under Section 11.01. All
mailings under this Section shall be by certified mail, return receipt
requested. Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
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(d) The Company hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(e) To the extent that the Company may be or become entitled, in
any jurisdiction in which judicial proceedings may at any time be commenced with
respect to this Agreement or any other Credit Document, to claim for itself or
its property or revenues any immunity from suit, court jurisdiction, attachment
prior to judgment, attachment in aid of execution of a judgment, execution of a
judgment or from any other legal process or remedy relating to its obligations
under this Agreement or any other Credit Agreement and to the extent that in any
such jurisdiction there may be attributed such an immunity (whether or not
claimed), the Company hereby irrevocably agrees not to claim and hereby
irrevocably waives such immunity to the fullest extent permitted by the laws of
such jurisdiction.
SECTION 11.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 11.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 11.12. Confidentiality.
(a) The Company acknowledges that from time to time financial
advisory, investment banking and other services may be offered or provided to
the Company or one or more of its Subsidiaries (in connection with this
Agreement or otherwise) by any Lender or by one or more subsidiaries or
affiliates of such Lender. The Company hereby agrees that, in the event any such
services are provided to the Company or any of its Subsidiaries, each Lender
providing such services is authorized to share any information delivered to such
Lender by the Company and its Subsidiaries pursuant to this Agreement, or in
connection with the decision of such Lender to enter into this Agreement, to any
such subsidiary or affiliate providing such services, provided that any such
subsidiary or affiliate receiving such information agrees to be bound by the
provisions of paragraph (b) of this Section as if it were a Lender hereunder.
Such authorization shall survive the repayment of the Loans and the termination
of the Commitments.
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(b) Each Lender, each Agent and each Global Lead Arranger agrees
(on behalf of itself and each of its affiliates, directors, officers, employees
and representatives) to restrict dissemination of any Confidential Information
(as defined below) only to those of its directors, officers, employees and
representatives who are involved in the evaluation of such information, and to
use reasonable precautions to keep such information confidential, in accordance
with its customary procedures for handling confidential information of the same
nature and in accordance with safe and sound banking practices. For purposes of
this Agreement, "Confidential Information" means any non-public information
supplied to it by the Company, including its contractors, consultants or
sponsors, pursuant to this Agreement or by Motorola in connection with this
Agreement or any Motorola Agreement, that is identified (in writing, in the case
of written information) by the Company or Motorola, as the case may be, as being
confidential at the time the same is delivered to the Lenders, the Agents or the
Global Lead Arrangers, provided that nothing herein shall limit the disclosure
of any such information by any Lender, Agent or Global Lead Arranger (i) after
such information shall have become public (other than through a violation of
this Section by such Lender, Agent or Global Lead Arranger), (ii) to the extent
required by statute, rule, regulation or judicial process, (iii) to counsel or
other experts for any of the Lenders, Agents or Global Lead Arrangers, provided
that such counsel or experts shall be bound by the requirements of this
paragraph (b) with respect to any such information, (iv) to bank examiners (or
any other regulatory authority having jurisdiction over any Lender, Agent or
Global Lead Arranger), or to auditors or accountants or rating agencies, (v) to
any Global Lead Arranger, any Agent or any other Lender (or to any of their
respective affiliates, provided that any such disclosure to any such affiliate
shall be made on a "need to know" basis only for use by such affiliates (and
each of its officers, directors and employees) solely in connection with the
transactions contemplated by this Agreement and each such affiliate (and each of
its officers, directors and employees) shall agree (for the benefit of the
Company and Motorola) to be bound to keep such information confidential on the
same terms as set forth in this Section), (vi) in connection with any litigation
to which any one or more of the Lenders, the Global Lead Arrangers or the Agents
is a party, or in connection with the enforcement of rights or remedies
hereunder or under any other Credit Document, provided that the party intending
to make such disclosure shall use reasonable efforts to cooperate with the
Company or with Motorola, as the case may be, to reasonably minimize the extent
of any such disclosure or to obtain confidential treatment of information to be
disclosed, (vii) to a subsidiary or affiliate of such Lender as provided in
paragraph (a) of this Section or (viii) to any assignee or participant (or
prospective assignee or participant) so long as such assignee or participant (or
prospective assignee or participant) first executes and delivers to the
respective Lender, the Company and Motorola a confidentiality agreement
containing provisions substantially the same as those in this Section; provided,
further, that in no event shall any Lender, Agent or Global Lead Arranger be
obligated or required to return any materials furnished by the Company or
Motorola hereunder or under the Motorola Consent, respectively, except to the
extent it has agreed to do so in writing in conjunction with the receipt of such
information. The obligations of any assignee that has executed a confidentiality
agreement as provided above shall be superseded by this Section on the date upon
which such assignee becomes a Lender hereunder pursuant to Section 11.04(b).
SECTION 11.13. No Third Party Beneficiaries. The agreement of the
Lenders to make the Loans to the Company on the terms and conditions set forth
herein are solely for the
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benefit of the Company, and no other Person (including, without limitation, any
other Credit Party or any contractor, subcontractor, supplier or materialman
furnishing supplies, goods or services to or for the benefit of the Iridium
Business) shall have any rights hereunder or, as against any Agent or any
Lender, under any other Transaction Document, or with respect to the Loans or
the proceeds thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
IRIDIUM OPERATING LLC
By
---------------------------------
Name:
Title:
Senior Secured Credit Agreement
106
101
LENDERS
THE CHASE MANHATTAN BANK
By
---------------------------------
Name:
Title:
Senior Secured Credit Agreement
107
102
BARCLAYS BANK PLC
By
---------------------------------
Name:
Title:
Senior Secured Credit Agreement
108
103
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
Senior Secured Credit Agreement
109
104
DRESDNER AG IN WIESBADEN
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
Senior Secured Credit Agreement
110
105
ISTITUTO BANCARLO SAN PAOLO DI
TORINO ISTITUTO MOBILIARE ITALIANO
S.p.A. - NEW YORK BRANCH
By
---------------------------------
Name:
Title:
Senior Secured Credit Agreement
111
106
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION
By
---------------------------------
Name:
Title:
Senior Secured Credit Agreement
112
107
THE FIRST NATIONAL BANK OF CHICAGO
By
---------------------------------
Name:
Title:
Senior Secured Credit Agreement
113
108
WAYLAND INVESTMENT FUND, LLC
By
---------------------------------
Name:
Title:
Senior Secured Credit Agreement
114
109
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By
---------------------------------
Name:
Title:
Senior Secured Credit Agreement
115
110
THE BANK OF NEW YORK
By
---------------------------------
Name:
Title:
Senior Secured Credit Agreement
116
111
CITIBANK, N.A.
By
---------------------------------
Name:
Title:
Senior Secured Credit Agreement
117
112
DEUTSCHE BANK AG, NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCHES
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
Senior Secured Credit Agreement
118
▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By
---------------------------------
Name:
Title:
Senior Secured Credit Agreement
119
114
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE
FUND, INC.
By
---------------------------------
Name:
Title:
Senior Secured Credit Agreement
120
115
BAYERISCHE LANDESBANK
GIROZENTRALE
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
Senior Secured Credit Agreement
121
116
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS, L.P.
By
---------------------------------
Name:
Title:
Senior Secured Credit Agreement
122
117
THE SANWA BANK LIMITED
By
---------------------------------
Name:
Title:
Senior Secured Credit Agreement
123
118
GRUPPO BANCA NAZIONALE DEL
LAVORO
BANCA NAZIONALE DEL LAVORO, S.p.A.
NEW YORK BRANCH
as Lender
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
GRUPPO BANCA NAZIONALE DEL
LAVORO
EFIBANCA, S.p.A. - ROMA
as Lender
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
Senior Secured Credit Agreement
124
119
ROYAL BANK OF SCOTLAND PLC
By
---------------------------------
Name:
Title:
Senior Secured Credit Agreement
125
120
CPR (USA) INC.
By
---------------------------------
Name:
Title:
Senior Secured Credit Agreement
126
121
FRANKLIN FLOATING RATE TRUST
By
---------------------------------
Name:
Title:
Senior Secured Credit Agreement
127
122
▇▇▇ ▇▇▇▇▇▇ SENIOR INCOME TRUST
By
---------------------------------
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ PRIME RATE INCOME TRUST
By
---------------------------------
Name:
Title:
Senior Secured Credit Agreement
128
123
GLOBAL LEAD ARRANGERS
CHASE SECURITIES INC.,
as a Global Lead Arranger
By
---------------------------------
Name:
Title:
BARCLAYS BANK PLC,
as a Global Lead Arranger
By
---------------------------------
Name:
Title:
Senior Secured Credit Agreement
129
124
ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK
By
---------------------------------
Name:
Title:
DOCUMENTATION AGENT
BARCLAYS BANK PLC
By
---------------------------------
Name:
Title:
Senior Secured Credit Agreement
130
SCHEDULE I
Commitments
---------------------------------------------------------------------------
Lenders Commitments
------- -----------
---------------------------------------------------------------------------
THE CHASE MANHATTAN BANK
---------------------------------------------------------------------------
BARCLAYS BANK PLC
---------------------------------------------------------------------------
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
---------------------------------------------------------------------------
DRESDNER AG IN WIESBADEN
---------------------------------------------------------------------------
ISTITUTO BANCARLO SAN PAOLO DI TORINO ISTITUTO
MOBILIARE ITALIANO S.p.A. - NEW YORK BRANCH
---------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION
---------------------------------------------------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
---------------------------------------------------------------------------
WAYLAND INVESMENT FUND, LLC
---------------------------------------------------------------------------
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
---------------------------------------------------------------------------
THE BANK OF NEW YORK
---------------------------------------------------------------------------
CITIBANK, N.A.
---------------------------------------------------------------------------
DEUTSCHE BANK AG, NEW YORK BRANCH AND/OR CAYMAN
ISLANDS BRANCHES
---------------------------------------------------------------------------
THE BANK OF NOVA SCOTIA
---------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE FUND, INC.
---------------------------------------------------------------------------
BAYERISCHE LANDESBANK GIROZENTRALE
---------------------------------------------------------------------------
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS, L.P.
---------------------------------------------------------------------------
THE SANWA BANK LIMITED
---------------------------------------------------------------------------
BANCO NAZIONALE DEL LAVORO, S.p.A NEW YORK BRANCH
---------------------------------------------------------------------------
EFIBANCA, S.p.A. - ROMA
---------------------------------------------------------------------------
ROYAL BANK OF SCOTLAND PLC
---------------------------------------------------------------------------
CPR (USA) INC.
---------------------------------------------------------------------------
FRANKLIN FLOATING RATE TRUST
---------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇ SENIOR INCOME TRUST
---------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇ PRIME RATE INCOME TRUST
---------------------------------------------------------------------------
Schedule I - Commitments
131
SCHEDULE II
Real Property
[See Section 3.08]
Iridium Operating LLC currently owns no real property; but expects
to acquire the following property interests from Motorola, Inc. or an affiliate
of Motorola, Inc. by March 31, 1999.
1. TTAC (Oahu, Hawaii) - Leasehold interest; estimated value of buildings
and machinery/equipment is $12 million.
2. TTAC (Yellowknife, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇) - Leasehold interest;
estimated value of buildings and machinery/equipment is $11 million.
3. TTAC (Iqaluit, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇) - Leasehold interest;
estimated value of buildings and machinery/equipment is $10 million.
4. Satellite and Network Operations Center (Lansdowne, VA) - Real property
interest; estimated value of buildings and machinery/equipment is $21
million.
5. Backup Control Facility (Rome, Italy) - Leasehold interest; estimated
value of buildings and machinery/equipment is $20 million.
Schedule II - Real Property
132
SCHEDULE III
Litigation
[See Section 3.09]
None
Schedule III - Litigation
133
SCHEDULE IV
Environmental Matters
[See Section 3.11]
None
Schedule IV - Environmental Matters
134
SCHEDULE V
Indebtedness
[See Section 3.17]
Principal Amount Principal Amount
Title of Agreement Outstanding Outstanding
1. Indenture, dated as of July 16, 1997, $300 million $300 million
relating to the Company's and Capital's
13% Senior Notes due 2005, Series A
(Guaranteed by certain Subsidiaries),
and the Notes thereunder
2. Indenture, dated as of July 16, 1997, $500 million $500 million
relating to the Company's and Capital's
14% Senior Notes due 2005, Series B
(Guaranteed by certain Subsidiaries),
and the Notes thereunder
3. Indenture, dated as of October 17, 1997, $300 million $300 million
relating to the Company's and Capital's
11 1/4% Senior Notes due 2005, Series C
(Guaranteed by certain Subsidiaries),
and the Notes thereunder
4. 14 1/2% Senior Subordinated Discount Approx. $272 million $480.2 million (fully
Notes Due 2006 (accreted value) accreted value)
5. Indenture, dated as of May 13, 1998, $350 million $350 million
relating to the Company's and Capital's
10 7/8% Senior Notes due 2005, Series D
(Guaranteed by certain Subsidiaries),
and the Notes thereunder
6. Credit Agreement, dated as of August 21, $271.5 million $285 million
1996, amended, relating to the $275 million
Motorola Guaranteed Credit Facility, and
the Notes thereunder
7. Existing Secured Credit Agreement, and $550 million $1 Billion
the Credit Documents referred to therein
Schedule V - Indebtedness
135
8. MOU Agreements Unspecified Unspecified
9. Motorola Guaranteed Credit Agreement $0 (exclusive of any $750,000,000
borrowing concurrently
with a borrowing under
this Agreement)
10. This Agreement and the other Credit Documents $0 $800,000,000
(other than the Motorola Agreements)
11. Principal Project Documents Unspecified Unspecified
Schedule V - Indebtedness
136
SCHEDULE VI
Liens
[See Section 3.18]
Liens granted pursuant to the Existing Secured Credit Agreement and the Security
Documents referred to therein. Outstanding principal amount $550 million.
Schedule VI - Liens
137
SCHEDULE VII
Subsidiaries
[See Section 3.20]
Name of Jurisdiction of Holder of Equity Nature of Equity Percentage
Subsidiary Incorporation Interests Interests Ownership
Iridium Capital Delaware Iridium Common 100%
Corporation Operating LLC Stock
Iridium IP LLC Delaware Iridium Membership 100%
Operating LLC Interests
Iridium Delaware Iridium Membership 100%
Roaming LLC Operating LLC Interests
Iridium Delaware Iridium Common 100%
Facilities Operating LLC Stock
Corporation
Iridium New Brunswick, Iridium Common 100%
Canada Canada Operating LLC Stock
Facilities Inc.
Schedule VII - Subsidiaries
138
SCHEDULE VIII
Investments
[See Section 3.21]
Promissory Note due from P.T. Bakrie to the Company (as transferee of
Iridium LLC) for approximately $7.5 million to secure payment for borrowings in
connection with the purchase of Class 1 Interests in Iridium LLC.
Promissory Note due from Iridium SudAmerica Corp. to the Company for
approximately $467,000 to secure payment for borrowings in connection with the
installation of software and upgrades to the Iridium SudAmerica Gateway.
Schedule VIII - Investments
139
SCHEDULE IX
Restrictive Agreements
[See Section 7.09]
Existing Secured Credit Agreement and the other Credit Documents referred to
therein
Schedule IX - Restrictive Agreements
140
SCHEDULE X
Employee Matters
[See Section 3.26]
None
Schedule X - Employee Matters
141
SCHEDULE XI
Affiliate Agreements
[See Section 7.08]
Not Applicable
Schedule XI - Affiliate Agreements
142
APPENDIX 1
CONDITIONS PRECEDENT
I. EXECUTION AND DELIVERY OF CREDIT AGREEMENT, NOTES AND GUARANTEE
1. Credit Agreement. This Agreement, duly executed and delivered by
each of the Company, the Agents, the Lenders, and Global Lead
Arrangers and this Agreement shall have become effective pursuant
to Section 11.06.
2. Promissory Notes. If requested by any Lender, the promissory note
or promissory notes for such Lender each duly executed and
delivered by the Company.
3. Subsidiary Guarantee Agreement. The Subsidiary Guarantee
Agreement, duly executed and delivered by each Subsidiary
Guarantor and the Administrative Agent.
II. EXECUTION AND DELIVERY OF SECURITY DOCUMENTS (AND RELATED DOCUMENTS)
1. Security Agreement. The Security Agreement, duly executed and
delivered by the Company, the Subsidiary Guarantors and the
Collateral Agent.
2. Depositary Agreement. The Depositary Agreement, duly executed and
delivered by the Company, the Collateral Agent and the Depositary
Bank specified therein, with respect to establishment, maintenance
and operation of the accounts of the Company contemplated to be
maintained with the Collateral Agent.
3. Parent Security Agreement. The Parent Security Agreement, duly
executed and delivered by Iridium LLC and the Collateral Agent.
4. Mortgages and Similar Instruments. A fee or leasehold mortgage,
deed of trust or similar instrument with respect to each parcel of
material real property or leasehold interest located in the United
States of the Company or any of its Subsidiaries owned or leased
as of the Closing Date, in each case duly executed and delivered
by the Company or the relevant Subsidiary, as the case may be.
5. LLC and Stock Certificates. Certificates evidencing the LLC
membership interests or capital stock, as applicable, of the
Company and each of its Subsidiaries, together with in each case
an undated stock or transfer power executed in blank, delivered
pursuant to the respective Security Document.
6. Filings, Registrations and Recordings. Evidence that all filings
(including applicable UCC financing statements), recordings,
registrations and similar action under each Security Document to
which Iridium LLC, the Company or any of its
Appendix 1 - Conditions Precedent
143
2
Subsidiaries is a party as of the Closing Date have been duly made
in order to create a first priority security interest in the
Collateral covered thereby (except as may be provided therein and
subject to any Permitted Liens) and that the payment of all
filing, recordation, registration and similar fees and all taxes
and other similar charges in connection therewith and with the
execution and delivery of each such Security Document has been
made, or that arrangements satisfactory to the Collateral Agent
with respect to the foregoing have been made.
7. UCC Searches. Satisfactory results of UCC, tax and judgment lien
searches in each jurisdiction reasonably requested by the
Administrative Agent and under the names of Iridium LLC, the
Company and each of the Company's Subsidiaries and each other name
reasonably requested by the Administrative Agent.
8. Title Insurance, Etc. With respect to each mortgage or other
instrument referred to above creating a lien on any real property
interest as of the Closing Date, a mortgagee title insurance
policy in respect of each such property, together with all other
pertinent related documentation of the type referred to in Section
6.10(c)(i) as reasonably requested by the Administrative Agent.
III. EXECUTION AND DELIVERY OF MOTOROLA AGREEMENTS
1. Memorandum of Understanding. The Memorandum of Understanding, duly
executed and delivered by the Company and Motorola.
2. The Amended and Restated Agreement Regarding Guarantee. The
Amended and Restated Agreement Regarding Guarantee, duly executed
and delivered by the Company and Motorola.
3. Motorola Consent. The Motorola Consent, duly executed and
delivered by Motorola, the Company, the Administrative Agent and
the Collateral Agent.
4. Motorola Pledge Agreement. The Motorola Pledge Agreement, duly
executed and delivered by Motorola and the Collateral Agent, and
delivery of the stock certificate(s) evidencing the capital stock
of Space System License, Inc. pledged thereunder, together with an
undated stock power executed in blank.
5. FCC License. A certified copy of the FCC License.
IV. CLOSING CERTIFICATES AND OTHER DOCUMENTS AND INFORMATION TO BE DELIVERED
BY THE COMPANY AND/OR THE SUBSIDIARY GUARANTORS
1. Borrowing Request. A Borrowing Request with respect to the Loans
to be made on the Closing Date.
2. Company's Secretary's Certificate. A certificate of the Secretary
or an Assistant Secretary of the Company, dated the Closing Date,
as to: (i) the Company's
Appendix 1 - Conditions Precedent
144
3
LLC Agreement; (ii) resolutions relating to the execution,
delivery and performance by the Company of the Credit Documents to
which it is a party; and (iii) incumbency and specimen signatures
of each officer of the Company executing any such Credit Documents
(and the Agents and each Lender may conclusively rely on such
officer's certificate until it receives notice in writing from the
Company).
3. Secretary's Certificate of each Subsidiary Guarantor. A
certificate of the Secretary or an Assistant Secretary of each
Subsidiary Guarantor, dated the Closing Date, as to: (i) its
limited liability company agreement, charter, by-laws or other
organizational documents; (ii) resolutions relating to the
execution, delivery and performance by such Subsidiary Guarantor
of the Credit Documents to which it is a party; and (iii)
incumbency and specimen signature of each officer of such
Subsidiary Guarantor executing any such Credit Documents (and the
Agents and each Lender may conclusively rely on such officer's
certificate until it receives notice in writing from such
Subsidiary Guarantor).
4. Company's Senior Officer's Certificate. A certificate of a senior
officer of the Company, dated the Closing Date, as to:
(i) the accuracy of the representations and warranties made
by the Company and its Subsidiaries in the Credit Documents to
which any of them is a party;
(ii) to the best knowledge of the Company, the accuracy of
the representations and warranties made by each other Transaction
Party in each Credit Document to which it is a party (other than
the Agents, the Global Lead Arrangers and the Lenders);
(iii) the absence of any Default; and
(iv) the insurance obtained by the Company being in
accordance with the insurance requirements under Section 8.01, and
that such insurance is in full force and effect and all insurance
premiums and deposits then due and payable thereon have been paid
or made.
5. Insurance. Certificates of insurance from Iridium LLC's and the
Company's insurance brokers showing that (i) the Agents and the
Lenders are additional insureds under all liability insurance
policies of Iridium LLC and the Company and (ii) The Chase
Manhattan Bank, as Collateral Agent, is named as loss payee under
all casualty insurance policies of Iridium LLC and the Company and
(if requested by the Administrative Agent) true and complete copy
of the insurance policies required to be in effect as of the
Closing Date.
6. Financial Statements. Copies of the most recent audited
consolidated financial statements of the Company and unaudited
quarterly consolidated financial
Appendix 1 - Conditions Precedent
145
4
statements of the Company for each quarterly period ended
subsequent to such audited financial statements.
7. FCC License. A certified copy of the FCC License issued to a
wholly-owned subsidiary of the Company (but only to the extent
such license shall have been transferred to the Company prior to
the Closing Date).
8. Process Agent. Letter from one or more persons satisfactory to the
Administrative Agent accepting its appointment as process agent in
New York for the Company and its Subsidiaries under the Credit
Documents to each of the Company or any of the Subsidiary
Guarantors is a party.
9. Budget. The budget duly adopted by the board of directors of the
Company covering the first quarter of 1999.
V. CLOSING CERTIFICATES AND OTHER DOCUMENTS AND INFORMATION TO BE DELIVERED
BY IRIDIUM LLC
1. Iridium LLC's Secretary's Certificate. A certificate of the
Secretary or an Assistant Secretary of Iridium LLC, dated the
Closing Date, as to: (i) the Limited Liability Company Agreement
of Iridium LLC as amended and in effect on the Closing Date
(including an amendment thereto pursuant to which the members of
Iridium LLC have consented to the assignment of the rights in
favor of Iridium LLC with respect to their respective Reserve
Capital Call Obligations pursuant to the Parent Security
Agreement, (ii) resolutions relating to the execution, delivery
and performance by Iridium LLC of the Credit Documents to which it
is a party), and (iii) incumbency and specimen signatures of each
officer of Iridium LLC executing any such Credit Documents (and
the Agents and each Lender may conclusively rely on such officer's
certificate until it receives notice in writing from Iridium LLC).
2. Iridium LLC's Senior Officer's Certificate. A certificate of a
senior officer of Iridium LLC, dated the Closing Date, as to:
(i) the accuracy of the representations and warranties made
by Iridium LLC in each Credit Document to which it is a party; and
(ii) the absence of any Default relating to Iridium LLC.
3. Financial Statements. Copies of the most recent audited
consolidated financial statements of Iridium LLC and unaudited
quarterly consolidated financial statements of Iridium LLC for
each quarterly period ended subsequent to such audited financial
statements.
Appendix 1 - Conditions Precedent
146
5
4. Process Agent. Letter from one or more persons satisfactory to the
Administrative Agent accepting its appointment as process agent in
New York for Iridium LLC under the Credit Documents to which
Iridium LLC is a party.
VI. CLOSING CERTIFICATES AND OTHER DOCUMENTS AND INFORMATION TO BE DELIVERED
BY MOTOROLA
1. Insurance. Evidence that the Lenders and the Agents shall be
additional insureds under the liability insurance policy of
Motorola and its Subsidiaries specifically procured in connection
with the Iridium Business.
2. Financial Statements of Motorola. Copies of the most recent annual
audited consolidated and unaudited quarterly financial statements
of Motorola.
3. Secretary's Certificate. An officer's certificate of the Secretary
or an Assistant Secretary of Motorola, dated the Closing Date, as
to: (i) the charter and by-laws of Motorola; (ii) the resolutions
relating to the execution, delivery and performance by Motorola of
the Credit Documents to which it is a party; and (iii) the
incumbency and specimen signatures of each officer of Motorola
executing any such Credit Document (and the Agents and each Lender
may conclusively rely on such officer's certificate until it
receives notice in writing from Motorola).
4. Senior Officer's Certificate. A certificate of a senior officer of
Motorola certifying as to: (i) the accuracy of the representations
and warranties made by Motorola in the Credit Documents to which
Motorola is party; and (ii) the absence of any Default relating to
Motorola thereunder.
5. Opinions of Counsel. The opinions of counsel to Motorola referred
to below.
VII. DOCUMENTS FROM OTHER PARTIES
1. Assignment Consents. A consent to the assignment by the Company of
its rights in certain of the material agreements to which the
Company is a party pursuant to the Security Agreement, executed by
each the relevant counterparty thereto (other than Iridium LLC,
the Company and its Subsidiaries, Motorola and the Secured
Parties).
2. Certain Other Parties' Financial Statements. Copies of the audited
financial statements of each person (if available, otherwise
unaudited and certified by a senior financial officer of such
party) obligated in respect of the Reserve Capital Call
Obligations, for the two most recent fiscal years and unaudited
quarterly financial statements of such party for each quarterly
period ended subsequent to the date of such audited financial
statements, but only to the extent that the Company, using
reasonable efforts has been able to obtain the same.
Appendix 1 - Conditions Precedent
147
6
3. Other Documents. Receipt of such other documents, certificates,
instruments and information as the Administrative Agent or special
counsel to the Global Lead Arrangers may reasonably request.
VIII. LEGAL OPINIONS
1. Opinion(s) of Counsel. Opinion(s) of Counsel to Iridium LLC, the
Company and the Company's Subsidiaries in the form and substance
reasonably satisfactory to the Administrative Agent.
2. Opinion of Counsel to Motorola. Opinions of New York and in-house
counsel to Motorola in the form and substance reasonably
satisfactory to the Administrative Agent.
3. Opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇. An opinion of Milbank,
Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special New York counsel to the Global
Lead Arrangers and the Agents.
4. Other Opinions. If any mortgage or similar instrument is being
executed and delivered as of the Closing Date, an opinion of
counsel to the Company or the relevant Subsidiary of the Company
in the jurisdiction where the property subject thereto is located
in form and substance reasonably satisfactory to the
Administrative Agent.
IX. TECHNICAL CONDITION
1. Report. A copy of the letter from the independent technical
advisor to the Global Lead Arrangers dated December 17, 1998
delivered to the Lenders.
X. ADDITIONAL CONDITIONS
1. Payment of Fees and Expenses. Evidence that the Company shall have
paid such fees, expenses and other amounts as the Company shall
have agreed to pay to the Global Lead Arrangers, the Agents and/or
the Lenders on or prior to the Closing Date, including, without
limitation, the reasonable fees, charges and disbursements of
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special New York counsel to the
Global Lead Arrangers and the Agents, and of each of the Lenders'
consultants (to the extent that statements for such fees and other
amounts have been delivered to the Company).
2. Motorola Guaranteed Credit Agreement. Evidence that the Company,
the lenders party thereto and Motorola shall have executed and
delivered the Motorola Guaranteed Credit Agreement, and that not
less than $470,000,000 of loans thereunder shall have been made to
the Company on the Closing Date.
Appendix 1 - Conditions Precedent
148
7
3. Payment of Outstanding Amounts under the Existing Credit
Agreements. Evidence that the outstanding amounts under the
Existing Guaranteed Credit Agreement and the Existing Secured
Credit Agreement have been paid in full and the commitments
thereunder have terminated, and all security interests and liens
securing the amounts under the Existing Secured Credit Agreement
have been released, or arrangements satisfactory to the
Administrative Agent shall have been made for such payment,
termination and/or release.
XI. STATUS OF MATERIAL IRIDIUM AGREEMENTS
1. Space System Contract. A certified copy of the Space System
Contract as amended and in effect on the Closing Date.
2. Terrestrial Network Development Contract. A certified copy of the
Terrestrial Network Development Contract as amended and in effect
on the Closing Date.
3. O&M Contract. A certified copy of the O&M Contract as amended and
in effect on the Closing Date.
4. Gateway Authorization Agreements. Certified copies of each Gateway
Authorization Agreement as amended and in effect on the Closing
Date.
5. IBSS Agreement. A certified copy of the IBSS Agreement as amended
and in effect on the Closing Date.
6. Management Services Agreement. A certified copy of the Management
Services Agreement among Iridium World Communications Ltd.,
Iridium LLC and the Company as amended and in effect on the
Closing Date.
Appendix 1 - Conditions Precedent
149
APPENDIX 2
Insurance Program
[See Section 8.01]
(The Insurance Policies Maintained by Iridium Operating LLC and
listed on this Appendix 2 are presented as representative of the types of
insurance to be maintained under Section 8.01. Underwriters, Policy/Binder
Numbers, etc. may change from time to time)
1. Satellite In-Orbit Liability Insurance - Principal Underwriter(s):
Lloyd's of London; Policy/Binder Number(s): 893/AG982039; Coverage:
combined single limit coverage of five hundred million dollars (US$
500,000,000).
2. Satellite In-Orbit Life Insurance - Debris Coverage
(a) Primary Layer: Principal Underwriter(s): Lloyd's of London;
Policy/Binder Number(s): 393/AG962064; Coverage: maximum amount payable
under the policy is two hundred seventy six million dollars (US$
276,000,000).
(b) First Excess Layer: Principal Underwriter(s): Lloyd's of London;
Policy/Binder Number(s): 393/AG972125; Coverage: losses between two
hundred seventy six million dollars (US$ 276,000,000) and five hundred
fifty two million dollars (US$ 552,000,000).
(c) 2nd Excess Layer: Principal Underwriter(s): Lloyd's of London;
Policy/Binder Number(s): 393/AG972131; Coverage: losses between five
hundred fifty two million dollars (US$ 552,000,000) and seven hundred
fifty nine million dollars (US$ 759,000,000).
3. Directors and Officers Insurance - Principal Underwriter(s): AIG, Old
Republic, Zurich, Reliance and Chubb; Policy/Binder Number(s): 8565444,
CUG25197, DOC2720013-01, NDA012368Z-98A; Coverage: $60 Million, expiring
7/18/01.
4. General Liability Insurance - Principal Underwriter(s): Chubb Group;
Policy/Binder Number(s): 35316012; Coverage: $1 Million, expiring
7/18/99.
5. Property Insurance - Principal Underwriter(s): Chubb Group; Policy/Binder
Number(s): 35316012; Coverage: Replacement cost, expiring 7/18/99.
6. Automobile Liability Insurance - Principal Underwriter(s): Chubb Group;
Policy/Binder Number(s): 73198771 and 73213708; Coverage: $1 million,
expiring 7/18/99.
7. Workers' Compensation and Employers Liability Insurance - Principal
Underwriter(s): Chubb Group; Policy/Binder Number(s): 71623596; Coverage:
Statutory, expiring 7/18/99.
Appendix 2 - Insurance Program
150
8. Aircraft Liability & Physical Damage Insurance - Principal
Underwriter(s): United States Aviation Insurance Group; Policy/Binder
Number(s): SIHL1-8000; Coverage: $21,966,817 on the Hull and $200 million
liability limit, expiring 3/11/99.
9. Umbrella Liability - Principal Underwriter(s): Chubb Group; Policy/Binder
Number(s): (98)7970-42-53RMG; Coverage: $50 million excess of underlying,
expiring 7/18/99.
10. Employment Practices Liability - Principal Underwriter(s): National
Union; Policy/Binder Number(s): 7704648; Coverage: $10 million, expiring
12/31/98.
11. Fiduciary Liability - Principal Underwriter(s): Chubb Group;
Policy/Binder Number(s): 81515828; Coverage: 5,000,000, expiring 7/29/99.
12. Crime and Excess Crime - Principal Underwriter(s): National Union and
Chubb; Policy/Binder Number(s): 4860134 and 81456518; Coverage:
$20,000,000, expiring 7/29/99.
Appendix 2 - Insurance Program
151
EXHIBIT A
[FORM OF ASSIGNMENT AND ACCEPTANCE]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Senior Secured Credit Agreement dated as
of December 23, 1998 (as amended, supplemented or otherwise modified and in
effect on date hereof, the "Credit Agreement") among Iridium Operating LLC, a
Delaware limited liability company, the lenders named therein, the Global Lead
Arrangers named therein, The Chase Manhattan Bank, as administrative agent for
such lenders and/or collateral agent, and Barclays Bank PLC, as documentation
agent thereunder. Terms defined in the Credit Agreement are used herein with the
same meanings.
The Assignor named below hereby sells and assigns, without
recourse, to the Assignee named below, and the Assignee hereby purchases
and assumes, without recourse, from the Assignor, effective as of the Assignment
Date set forth below, the interests set forth below (the "Assigned Interest") in
the Assignor's rights and obligations under the Credit Agreement, including,
without limitation, the interests set forth below in the Commitment of the
Assignor on the Assignment Date and Loans owing to the Assignor which are
outstanding on the Assignment Date, together with unpaid interest accrued on the
assigned Loans to the Assignment Date, and the amount, if any, set forth below
of the fees accrued to the Assignment Date for the account of the Assignor. The
Assignee hereby acknowledges receipt of a copy of the Credit Agreement. From and
after the Assignment Date (i) the Assignee shall be a party to and be bound by
the provisions of the Credit Agreement and, to the extent of the interests
assigned by this Assignment and Acceptance, have the rights and obligations of a
Lender thereunder and (ii) the Assignor shall, to the extent of the interests
assigned by this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
The Assignor (a) makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, any other Credit Document or any instrument or document furnished
pursuant thereto, other than that it has not created any adverse claim upon the
interest being assigned by it hereunder and that such interest is free and clear
of any adverse claim; and (b) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Company, any of
its Subsidiaries or any other Transaction Party or the performance or observance
by the Company, any of its Subsidiaries or any other Transaction Party of any of
their respective obligations under the Credit Agreement or any other Transaction
Document or any other instrument or document furnished pursuant hereto or
thereto.
The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received such documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and
Acceptance; (c) agrees that it will, independently and without reliance upon the
Assignor, the Agents or any other person that has become a Lender and based on
such
Assignment and Acceptance
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documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; and (d) appoints and authorizes (i) the Administrative Agent to take
such action as agent on its behalf and to exercise such powers under the Credit
Agreement and the other Credit Documents to which it is a party as are delegated
to the Administrative Agent by the terms thereof and (ii) the Collateral Agent
to take such action as agent on its behalf and to exercise such powers under the
Credit Documents to which it is a party as are delegated to the Collateral Agent
by the terms thereof, together, in each case, with such powers as are incidental
thereto.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is a Foreign Lender, any
documentation required to be delivered by the Assignee pursuant to Section
2.15(e) of the Credit Agreement, duly completed and executed by the Assignee,
and (ii) if the Assignee is not already a Lender under the Credit Agreement, an
administrative questionnaire in the form supplied by the Administrative Agent,
duly completed by the Assignee. The [Assignee/Assignor] shall pay the fee
payable to the Administrative Agent pursuant to Section 11.04(b) of the Credit
Agreement.
This Assignment and Acceptance shall be governed by and construed
in accordance with the laws of the State of New York.
Assignment and Acceptance
153
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Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
Percentage Assigned of
Facility/Commitment
(set forth, to at least
8 decimals, as a
percentage of the
Facility and the
aggregate Commitments
Principal Amount of all Lenders
Facility Assigned thereunder
-------- -------- ----------------
Commitment Assigned: $ %
Loans:
Fees Assigned (if any):
The terms set forth above are hereby agreed to as of [_____________]:
[NAME OF ASSIGNOR], as Assignor
By
-----------------------------
Name:
Title:
[NAME OF ASSIGNEE], as Assignee
By
------------------------------
Name:
Title:
Assignment and Acceptance
154
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The undersigned hereby consent to the within assignment:(1)
IRIDIUM OPERATING LLC
By
-------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By
-------------------------
Name:
Title:
------------------------
(1) Consents to be included to the extent required by Section 11.04(b) of the
Credit Agreement.
Assignment and Acceptance
155
EXHIBIT B
PLEDGE AND SECURITY AGREEMENT
PLEDGE AND SECURITY AGREEMENT dated as of December ___, 1998
between: IRIDIUM OPERATING LLC, a limited liability company duly organized and
validly existing under the laws of the State of Delaware (the "Company"); each
of the Subsidiaries of the Company identified under the caption "SUBSIDIARY
GUARANTORS" on the signature pages hereof (individually, a "Subsidiary
Guarantor" and, collectively, the "Subsidiary Guarantors" and, together with the
Company, the "Obligors"); and THE CHASE MANHATTAN BANK, as collateral agent
hereunder for the lenders party to the Credit Agreement referred to below (in
such capacity, together with its successors in such capacity, the "Collateral
Agent").
The Company, certain lenders, the Global Lead Arrangers, The Chase
Manhattan Bank, as the Administrative Agent and the Collateral Agent, and
Barclays Bank PLC, as the Documentation Agent, are parties to a Senior Secured
Credit Agreement dated as of December 23, 1998 (as modified, supplemented or
otherwise modified and in effect from time to time, the "Credit Agreement"),
providing, subject to the terms and conditions thereof, for loans to be made by
said lenders to the Company in an aggregate principal amount not exceeding
$800,000,000.
To induce said lenders to enter into the Credit Agreement and to
extend credit thereunder, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, each Obligor has
agreed to pledge and grant a security interest in the Collateral (as hereinafter
defined) as security for the Secured Obligations (as so defined). Accordingly,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. Capitalized terms used but
not defined herein shall have their respective meanings in the Credit Agreement.
In addition, as used herein:
"Accounts" has the meaning assigned to such term in paragraph (g)
of Article III.
"Assigned Agreement" has the meaning assigned to such term in
paragraph (e) of Article III.
"Collateral" has the meaning assigned to such term in Article III.
"Copyright Collateral" means all Copyrights, whether now owned or
hereafter acquired by any Obligor, including each Copyright identified in
Annex 2.
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"Copyrights" has the meaning assigned to such term in paragraph
(o) of Article III.
"Depositary Accounts" means the "Accounts", as such term is
defined in the Depositary Agreement.
"Documents" has the meaning assigned to such term in paragraph (n)
of Article III.
"Equipment" has the meaning assigned to such term in paragraph (j)
of Article III.
"Hawaiian TTAC License" means the License Agreement dated December
1, 1993 between the Estate of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as Licensor , and Motorola,
Inc., as Licensee, relating to all that certain real property consisting of
approximately 250,034 square feet or 5.74 acres, said property being a
portion of Lot 46, comprising 118,207 acres, located in Kaunala, District
of Koolaula, City and County of Honolulu, State of Hawaii, as shown on
Map 7, filed in the Office of the Assistant Registrar of the land court of
the State of Hawaii with Land Court application No. 1095 of the Trustees
under the Will and of the Estate of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, deceased, being a
portion of the land(s) described in Certificate of Title No. 17,854 issued
to the Trustees under the Will and of the Estate of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
deceased.
"Instruments" has the meaning assigned to such term in paragraph
(h) of Article III.
"Intellectual Property" means, collectively, all Copyright
Collateral, all Patent Collateral, all Trademark Collateral and all of the
Collateral referred to in paragraphs (r), (s) and (t) of Article III.
"Inventory" has the meaning assigned to such term in paragraph (l)
of Article III.
"Iridium Clearing Account" has the meaning assigned to such term
in the Depositary Agreement.
"Patent Collateral" means all Patents, whether now owned or
hereafter acquired by any Obligor, including each Patent identified in
Annex 3.
"Patents" has the meaning assigned to such term in paragraph (p)
of Article III.
"Pledged Collateral" has the meaning assigned to such term in
paragraph (d) of Article III.
"Pledged Interests" has the meaning assigned to such term in
paragraph (b) of Article III.
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"Pledged Stock" has the meaning assigned to such term in paragraph
(a) of Article III.
"Rolling Stock" has the meaning assigned to such term in paragraph
(k) of Article III.
"Secured Obligations" means, collectively, (a) in the case of the
Company, the principal of and interest on the Loans, all other amounts from
time to time owing to the Lenders or the Agents by the Company under the
Credit Documents (including, without limitation, hereunder) and all amounts
from time to time owing to any Lender or any Affiliate of any Lender by the
Company or any of its Subsidiaries in respect of any Hedging Agreement and
(b) in the case of each Subsidiary Guarantor, all obligations of such
Subsidiary Guarantor hereunder and under the Subsidiary Guarantee
Agreement.
"Secured Parties" means, collectively, the Lenders, the Collateral
Agent and the other Agents.
"Trademark Collateral" means all Trademarks, whether now owned or
hereafter acquired by any Obligor, including each Trademark identified in
Annex 4. Notwithstanding the foregoing, the Trademark Collateral does not
and shall not include any Trademark which would be rendered invalid,
abandoned, void or unenforceable by reason of its being included as part of
the Trademark Collateral.
"Trademarks" has the meaning assigned to such term in paragraph
(q) of Article III.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect from time to time in the State of New York.
SECTION 1.02. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified, including an amendment
and restatement thereof, but subject to any restrictions on such amendments,
supplements or modifications set forth herein, (b) any reference herein to any
Person shall be construed to include such Person's successors and assigns or, in
the case of any Governmental Authority, any entity succeeding to any or all of
the functions of such Governmental Authority, (c) the words "herein", "hereof"
and "hereunder", and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (d)
all references herein to Sections and Annexes shall be construed to refer to
Sections of, and Annexes to, this Agreement and (e) the words "asset" and
"property" shall be construed to have the same meaning and effect and to refer
to any and all
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tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Each Obligor represents and warrants to the Secured Parties that:
(a) Such Obligor is the sole beneficial owner of the Collateral in
which it purports to grant a security interest pursuant to Article III and
no Lien exists or will exist upon such Collateral at any time (and no right
or option to acquire the same exists in favor of any other Person), except
for Liens permitted under Section 7.02 of the Credit Agreement and except
for the pledge and security interest in favor of the Collateral Agent for
the benefit of the Lenders created or provided for herein, which pledge and
security interest constitute a first priority perfected pledge and security
interest in and to all of such Collateral (other than Intellectual Property
registered or otherwise located outside of the United States of America and
except as permitted under Section 7.02 of the Credit Agreement).
(b) Each of the Pledged Stock and the Pledged Interests identified
under the name of such Obligor in Annex 1 is, and all other Pledged Stock
and Pledged Interests in which such Obligor shall hereafter grant a
security interest pursuant to Article III will be, duly authorized, validly
existing, fully paid and non-assessable (except as provided in Section
18-607 of the Delaware LLC Act) and none of the Pledged Collateral is or
will be subject to any contractual restriction, or any restriction under
the charter, by-laws or other organizational documents of the respective
issuer thereof, upon the transfer of such Pledged Collateral (except for
any such restriction contained herein or in the Credit Agreement or as
required by law).
(c) The Pledged Stock and the Pledged Interests identified in
Annex 1 constitutes all (or, in the case of any Foreign Subsidiary prior to
the occurrence of an Event of Default, 65%) of the issued and outstanding
ownership interests of the issuer thereof on the date hereof (whether or
not registered in the name of any Obligor) and said Annex 1 correctly
identifies, as at the date hereof, the respective issuers thereof, the type
or class and par value of such ownership interests (if any), the respective
number of shares or units thereof, and registered owners thereof.
(d) Annexes 2, 3 and 4, respectively, set forth under the name of
such Obligor a complete and correct list of all Copyrights, Patents and
Trademarks owned by such Obligor on the date hereof; except pursuant to
licenses and other user agreements entered into by such Obligor in the
ordinary course of business, that are listed in Annex 5, such Obligor owns
and possesses the right to use, and has done nothing to authorize or enable
any other Person to use, any Copyright, Patent or Trademark listed in said
Annexes 2, 3 and 4, and all registrations listed in said Annexes 2, 3 and 4
are valid and in full force and
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effect; except as may be set forth in said Annex 5, such Obligor owns and
possesses the right to use all Copyrights, Patents and Trademarks.
(e) Annex 5 sets forth a complete and correct list of all material
licenses and other user agreements included in the Intellectual Property on
the date hereof.
(f) To such Obligor's knowledge, (i) except as set forth in Annex
5, there is no violation by others of any right of such Obligor with
respect to any Copyright, Patent or Trademark listed in Annexes 2, 3 and 4,
respectively, under the name of such Obligor and (ii) such Obligor is not
infringing in any respect upon any Copyright, Patent or Trademark of any
other Person; and no proceedings have been instituted or are pending
against such Obligor or, to such Obligor's knowledge, threatened, and no
claim against such Obligor has been received by such Obligor, alleging any
such violation, except as may be set forth in said Annex 5.
(g) Such Obligor does not own any Trademarks registered in the
United States of America to which the last sentence of the definition of
Trademark Collateral applies.
ARTICLE III
COLLATERAL
As collateral security for the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of the Secured
Obligations, each Obligor hereby pledges, assigns, hypothecates and transfers to
the Collateral Agent for the equal and ratable benefit of the Secured Parties,
and grants to the Collateral Agent for the equal and ratable benefit of the
Secured Parties a Lien on and security interest in, all of such Obligor's right,
title and interest in the following property, whether now owned by such Obligor
or hereafter acquired and whether now existing or hereafter coming into
existence (all being collectively referred to herein as "Collateral"):
(a) all shares of capital stock or other evidence of beneficial
interest of whatever class of any corporation, including, without
limitation, the shares of capital stock of each corporation identified in
Annex 1, now or hereafter owned by such Obligor, in each case together with
the certificates evidencing the same, but in the case of a Foreign
Subsidiary only to the extent set forth in Section 4.04(a)(i)
(collectively, the "Pledged Stock");
(b) all membership or other ownership interests of such Obligor in
any limited liability company, all limited partnership interests in any
limited partnership, all general partnership interests in any general
partnership, all joint venture interests in any joint venture and all
other equity or ownership interests of any Person of whatever kind or
nature, including, without limitation, the membership interests of the
limited liability companies identified in Annex 1, now or hereafter owned
by such Obligor, in each case together with the certificates (if any)
evidencing the same, including, without limitation, all of the right,
title and interest of such Obligor as a member, partner or other equity
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holder in, to and under any agreement or other instrument organizing or forming
such entity, as said agreement or instrument may be amended, supplemented or
modified and in effect from time to time, and (i) all rights of such Obligor to
receive moneys due but unpaid and to become due under or pursuant to such
agreement or instrument, (ii) all rights of such Obligor to participate in the
operation or management of such entity and to take actions or consent to actions
in accordance with the provisions of such agreement or instrument, (iii) all
rights of such Obligor to property of such entity, (iv) all rights of such
Obligor to receive proceeds of any insurance, bond, indemnity, warranty or
guaranty with respect to such agreement or instrument, (v) all claims of such
Obligor for damages arising out of or for breach of or default under such
agreement or instrument and (vi) all rights of such Obligor to terminate, amend,
supplement, modify or waive performance under such agreement or instrument, to
perform thereunder and to compel performance and otherwise to exercise all
remedies thereunder, but in the case of a Foreign Subsidiary only to the extent
set forth in Section 4.04(a)(i) (collectively, the "Pledged Interests"), and any
right, title and interest of the Company in, to and under the Company LLC
Agreement;
(c) all shares, interests, securities, moneys or other property
representing a dividend on any of the Pledged Stock or the Pledged
Interests, or representing a distribution or return of capital upon or in
respect of the Pledged Stock or the Pledged Interests, or resulting from a
split-up, revision, reclassification or other like change of the Pledged
Stock or the Pledged Interests or otherwise received in exchange therefor,
and all options, warrants and similar rights issued to the holders of, or
otherwise in respect of, the Pledged Stock or the Pledged Interests;
(d) without affecting the obligations of such Obligor under any
provision prohibiting such action hereunder or under the Credit Agreement,
in the event of any consolidation or merger of a Subsidiary in which one of
the Obligors is not the surviving entity, all ownership interests of
whatever class owned by such Obligor of the successor entity formed by or
resulting from such consolidation or merger (the Pledged Stock and the
Pledged Interests, together with all shares, interests, securities, moneys
or property as may from time to time be pledged hereunder pursuant to
clause (a), (b) or (c) above and this clause (d) being herein, and the
proceeds of and to any such property and, to the extent related to any such
property or such proceeds, all books, correspondence, credit files,
records, invoices and other papers, collectively called the "Pledged
Collateral");
(e) all contracts and agreements to which such Obligor is a party
and other similar consensual obligations owed to such Obligor including,
without limitation, the following:
(i) the Space System Contract;
(ii) the O&M Contract;
(iii) the Terrestrial Network Development Contract;
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(iv) each Gateway Authorization Agreement;
(v) the IBSS Agreement;
(vi) the Management Services Agreement;
(vii) the Memorandum of Understanding (including, without
limitation, the Motorola Guarantee Obligation); and
(viii) the Agreement Regarding Guarantee.
(said contracts, agreements and obligations, as so amended, supplemented
renewed or modified, including any such replacement or substitution
contracts, agreements and obligations, being, individually, an "Assigned
Agreement", and, collectively, the "Assigned Agreements"), including,
without limitation, (1) all rights of such Obligor to receive moneys due
and to become due under or pursuant to the Assigned Agreements, (2) all
rights to receive property, assets, services or other performance
thereunder, (3) all rights of such Obligor to receive return of any
premiums for or proceeds of any insurance, payment and/or performance bond,
indemnity, warranty or guaranty with respect to the Assigned Agreements or
to receive condemnation proceeds thereof, (4) all claims of such Obligor
for damages arising out of or for breach of or default under the Assigned
Agreements and (5) all rights of such Obligor to terminate, amend,
supplement, modify or waive performance under the Assigned Agreements, to
perform thereunder and to compel performance and otherwise to exercise all
remedies thereunder, in each case as such contract, agreement and
obligation may be amended, supplemented, renewed or otherwise modified,
including, without limitation, any agreement, contract or document
replacing or substituting for such contract, agreement or obligation from
time to time;
(f) all Government Approvals (including, without limitation, the
FCC License) now or hereafter held in the name, or for the benefit, of the
Company or any of its Subsidiaries, provided that any such Government
Approval which by its terms or by operation of law would become void,
voidable, terminable or revocable if mortgaged, pledged or assigned
hereunder or if a security interest therein was granted hereunder are
expressly excepted and excluded from the Lien and terms of this Agreement
to the extent necessary so as to avoid such voidness, avoidability,
terminability or revocability, but such security interest does include, to
the maximum extent permitted by law, all rights of such Obligor incident or
appurtenant to such Government Approval and the right of such Obligor to
receive all proceeds derived from or in connection with the sale,
assignment or transfer of such Government Approval;
(g) all accounts and general intangibles (each as defined in the
Uniform Commercial Code) of such Obligor constituting any right of such
Obligor to the payment of money, including, without limitation, all moneys
due and to become due to such Obligor under or in respect of the Assigned
Agreements, Government Approvals, franchises, licenses, permits,
subscriptions or other agreements or at law or in equity (whether or not
earned by performance and whether arising directly or indirectly and
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including claims for reimbursement, contribution, indemnity and
subrogation), rights of such Obligor to receive payments from any other
source but excluding the Pledged Collateral, and all tax refunds (such
accounts, general intangibles and moneys due and to become due being herein
called collectively "Accounts");
(h) all instruments, chattel paper or letters of credit (each as
defined in the Uniform Commercial Code) of such Obligor evidencing,
representing, arising from or existing in respect of, relating to, securing
or otherwise supporting the payment of, any of the Accounts, including (but
not limited to) promissory notes, drafts, bills of exchange and trade
acceptances (herein collectively called "Instruments");
(i) all other accounts or general intangibles of such Obligor not
constituting Accounts to the extent not otherwise specifically excluded in
this Article III;
(j) all equipment (as such term is defined in the Uniform
Commercial Code) of such Obligor including, without limitation, all
machinery, apparatus, installation facilities, satellites and other
tangible personal property of such Obligor of any nature whatsoever,
wherever located, and whether on earth or in orbit (herein collectively
called "Equipment");
(k) all automobiles, trucks, tractors, trailers and other rolling
stock or moveable personal property, including, without limitation, rolling
stock for which the title thereto is evidenced by a certificate of title
issued by the United States of America or any State thereof which permits
or requires a Lien thereon to be evidenced upon such title (herein
collectively called "Rolling Stock");
(l) all inventory (as such term is defined in the Uniform
Commercial Code) in all of its forms, wherever located (including, without
limitation: (i) spare parts inventory, consumable supplies inventory and
maintenance materials inventory and raw materials and work in progress
therefor, finished goods thereof, and materials used or consumed in the
manufacture or production thereof, (ii) goods in which such Obligor has an
interest in mass or a joint or other interest or right of any kind and
(iii) goods which are returned to or repossessed by such Obligor), and all
accessions thereto and products thereof and documentation therefor (herein
collectively called "Inventory");
(m) all rights, claims and benefits of such Obligor against any
Person arising out of, relating to or in connection with Inventory or
Equipment purchased by such Obligor, including, without limitation, any
such rights, claims or benefits against any Person storing or transporting
such Inventory or Equipment;
(n) all documents of title (as defined in the Uniform Commercial
Code) or other receipts of such Obligor covering, evidencing or
representing Inventory or Equipment (herein collectively called
"Documents");
(o) all copyrights, copyright registrations and applications for
copyright registrations, including, without limitation, all renewals and
extensions thereof, the right
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to recover for all past, present and future infringements thereof, and all
other rights of any kind whatsoever accruing thereunder or pertaining
thereto (herein collectively called "Copyrights");
(p) all patents and patent applications, including, without
limitation, the inventions and improvements described and claimed therein
together with the reissues, divisions, continuations, renewals, extensions
and continuations-in-part thereof, all income, royalties, damages and
payments now or hereafter due and/or payable under and with respect
thereto, including, without limitation, damages and payments for all past,
present and future infringements thereof, the right to ▇▇▇ for past,
present and future infringements thereof, and all rights corresponding
thereto throughout the world (herein collectively called "Patents");
(q) all trade names, trademarks and service marks, logos,
trademark and service ▇▇▇▇ registrations, and applications for trademark
and service ▇▇▇▇ registrations (including, without limitation, all renewals
of trademark and service ▇▇▇▇ registrations, and all rights corresponding
thereto throughout the world, but excluding any such registration that
would be rendered invalid, abandoned, void or unenforceable by reason of
its being included as part of the Collateral), the right to recover for all
past, present and future infringements thereof, all other rights of any
kind whatsoever accruing thereunder or pertaining thereto, together, in
each case, with the product lines and goodwill of the business connected
with the use of, and symbolized by, each such trade name, trademark and
service ▇▇▇▇ (herein collectively called "Trademarks");
(r) all inventions, processes, production methods, proprietary
information, know-how and trade secrets used in or relating to the Iridium
Business, and all licenses or user or other agreements granted to such
Obligor with respect to any of the foregoing in each case whether now or
hereafter owned or used including, without limitation, the material
licenses or other agreements with respect to any of the Copyright
Collateral, Patent Collateral or Trademark Collateral listed in Annex 5;
(s) all causes of action, claims and warranties now or hereafter
owned or acquired by such Obligor in respect of any of the items listed in
subsection (r) or (t) of this Article III or any of the Copyright
Collateral, Patent Collateral or Trademark Collateral;
(t) all information, customer lists, identification of suppliers,
data, plans, blueprints, designs, models, recorded knowledge, surveys,
architectural, structural, mechanical and engineering plans and
specifications, studies, reports and drawings, test reports, manuals,
material standards, processing standards, performance standards, catalogs,
computer and automatic machinery software and programs, all accounting
information and all media in which or on which any information or knowledge
or data or records may be recorded or stored and all computer programs used
for the compilation or printout of such information, knowledge, records or
data, prepared by or on behalf of such Obligor for the Iridium Business;
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(u) the Depositary Accounts, and all balances in each thereof and
all instruments, certificates and notes in respect of Permitted Investments
of such balances held or maintained from time to time in each thereof;
(v) all other general or special deposit accounts, including any
demand, time, savings, passbook or similar account maintained by such
Obligor with any bank, trust company, savings and loan association, credit
union or similar organization, and all money, cash, securities and other
properties of such Obligor deposited in any such account;
(w) all leases of personal property, whether such Obligor is the
lessor or the lessee thereunder, excluding leases of automobiles, fax
machines, copiers, typewriters and similar office equipment, but
specifically including (except as specifically excluded above in this
clause (w) and regardless of whether such items would constitute office
equipment) computers, computer peripherals, telephone equipment, telephone
switches, and all other types of communications equipment;
(x) all insurance policies (except, in the case of any insurance
policy not required to be maintained under Section 8.01 of the Credit
Agreement, to the extent the transfer or assignment of such insurance
policy would render such insurance policy void), whether owned by or
payable to such Obligor, insuring against any risks whatsoever (including,
without limitation, casualty, property damage, liability and death),
including, without limitation, all such policies required to be maintained
under Section 8.01 of the Credit Agreement with respect to any in-orbit
satellite or other property of such Obligor, all loss proceeds and other
amounts payable to such Obligor thereunder, any indemnity, warranty or
guaranty in respect of the property insured thereby, and all eminent domain
or similar proceeds or awards with respect thereto and all other rights of
such Obligor with respect thereto;
(y) to the extent the same constitutes personal property, the
Hawaiian TTAC License;
(z) all other tangible and intangible personal property and
fixtures of such Obligor (except to the extent expressly excluded above);
(aa) all books, correspondence, credit files, records, invoices,
ledgers and other papers of every kind and nature, including without
limitation all tapes, cards, computer runs and other papers and documents
in the possession or under the control of such Obligor or any computer
bureau or service company from time to time acting for such Obligor; and
(bb) all proceeds, products, offspring, rents, profits, royalties,
revenues, issues, income, benefits, accessions, additions, substitutions
and replacements of and to any of the property of such Obligor described in
the preceding clauses of this Section (including, without limitation, all
causes of action, claims and warranties now or hereafter held by any
Obligor in respect of any of the items listed above).
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Notwithstanding anything in this Article III to the contrary, the
Collateral shall not include the Iridium Clearing Account and any cash or
other property held therein or credited thereto from time to time.
ARTICLE IV
REMEDIES
In furtherance of the grant of the pledge and security interest
pursuant to Article III, the Obligors hereby jointly and severally agree with
the Secured Parties as follows:
SECTION 4.01. Delivery and Other Perfection. Each Obligor shall:
(a) if any of the shares, interests, securities, moneys or
property required to be pledged by such Obligor under clauses (a), (b), (c)
and (d) of Article III are received by such Obligor, forthwith either (i)
transfer and deliver to the Collateral Agent such shares or securities so
received by such Obligor (together with the certificates for any such
shares and securities duly endorsed in blank or accompanied by undated
stock powers duly executed in blank), all of which thereafter shall be held
by the Collateral Agent, pursuant to the terms of this Agreement, as part
of the Collateral, (ii) with respect to any Pledged Collateral that is not
evidenced by a certificate, execute and deliver written instructions to the
issuer thereof to register the Lien created hereunder in such Pledged
Collateral in the registration books maintained by such issuer for such
purpose and cause the respective Obligor to execute and deliver to the
Collateral Agent a written confirmation to the effect that the Lien created
hereunder in such Pledged Collateral has been duly registered in such
registration books, all in form and substance satisfactory to the
Collateral Agent or (iii) take such other action as the Collateral Agent
shall deem necessary or appropriate to duly perfect the Lien created
hereunder in such shares, interests, securities, moneys or property in said
clauses (a), (b), (c) and (d);
(b) deliver and pledge to the Collateral Agent any and all
Instruments, endorsed and/or accompanied by such instruments of assignment
and transfer in such form and substance as the Collateral Agent may
reasonably request; provided that so long as no Event of Default shall have
occurred and be continuing, such Obligor may retain for collection in the
ordinary course any Instruments, Accounts or General Intangibles received
by such Obligor and the Collateral Agent shall, promptly upon request of
such Obligor through the Company, make appropriate arrangements for making
any Instrument pledged by such Obligor available to such Obligor for
purposes of presentation, collection or renewal (any such arrangement to be
effected, to the extent reasonably deemed appropriate by the Collateral
Agent, against a trust receipt or like document);
(c) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that may
be necessary or desirable (in
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the reasonable judgment of the Collateral Agent) to create, preserve,
perfect or validate the security interest granted pursuant hereto or to
enable the Collateral Agent to exercise and enforce its rights hereunder
with respect to such pledge and security interest (it being understood that
the provisions of this Section will apply to all Collateral, whether
personal property or real property, whether tangible or intangible, and
wherever located and whenever acquired, including, without limitation,
Collateral located outside the United States or in space), including,
without limitation, causing any or all of the Pledged Collateral to be
transferred of record into the name of the Collateral Agent or its nominee
(and the Collateral Agent agrees that if any Pledged Collateral is
transferred into its name or the name of its nominee, the Collateral Agent
will thereafter promptly give to the respective Obligor copies of any
notices and communications received by it with respect to the Pledged
Collateral pledged by such Obligor hereunder), provided that notices to
account debtors or unaffiliated parties in respect of any Accounts,
Instruments or other Collateral referred to in clause (i) of Article III
shall be subject to the provisions of clause (h) below;
(d) keep full and accurate books and records in accordance with
generally accepted business practices relating to the Collateral, and stamp
or otherwise ▇▇▇▇ such books and records in such manner as the Collateral
Agent may reasonably require in order to reflect the security interests
granted by this Agreement;
(e) furnish to the Collateral Agent from time to time (but, unless
an Event of Default shall have occurred and be continuing, no more
frequently than quarterly) statements and schedules identifying and
describing any changes since the preceding such statement or schedule
regarding the Copyright Collateral, the Patent Collateral and the Trademark
Collateral, respectively, and such other reports in connection with the
Copyright Collateral, the Patent Collateral and the Trademark Collateral,
as the Collateral Agent may reasonably request, all in reasonable detail;
(f) promptly upon request of the Collateral Agent, following
receipt by the Collateral Agent of any statements, schedules or reports
pursuant to clause (e) above, modify this Agreement by amending Annexes 2,
3 and/or 4, as the case may be, to include any Copyright, Patent or
Trademark that becomes part of the Collateral under this Agreement;
(g) permit representatives of the Collateral Agent, upon
reasonable notice, at any time during normal business hours to inspect and
make abstracts from its books and records pertaining to the Collateral, and
permit representatives of the Collateral Agent to be present at such
Obligor's place of business to receive copies of all communications and
remittances relating to the Collateral, and forward copies of any notices
or communications received by such Obligor with respect to the Collateral,
all in such manner as the Collateral Agent may require; and
(h) upon the occurrence and during the continuance of any Event of
Default, upon request of the Collateral Agent, promptly notify (and such
Obligor hereby authorizes the Collateral Agent so to notify) each account
debtor in respect of any
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Accounts or Instruments that such Collateral has been assigned to the
Collateral Agent hereunder, and that any payments due or to become due in
respect of such Collateral are to be made directly to the Depositary Agent
for deposit into the General Receipt & Disbursement Account pursuant to the
Depositary Agreement.
SECTION 4.02. Other Financing Statements and Liens. Except as
otherwise permitted under Section 7.02 of the Credit Agreement, without the
prior written consent of the Collateral Agent, no Obligor shall file or suffer
to be on file, or authorize or permit to be filed or to be on file, in any
jurisdiction, any financing statement or like instrument with respect to the
Collateral in which the Collateral Agent is not named as the sole secured party
for the benefit of the Lenders.
SECTION 4.03. Preservation of Rights. The Collateral Agent shall
not be required to take steps necessary to preserve any rights
against prior parties to any of the Collateral.
SECTION 4.04. Special Provisions Relating to Certain Collateral.
(a) Pledged Collateral.
(i) The Obligors will cause the Pledged Collateral to constitute
at all times (x) 100% of the aggregate ownership interests of each
Subsidiary of the Company (other than any Foreign Subsidiary or any
Domestic Subsidiary directly owned by any Foreign Subsidiary) then
outstanding and (y) in the case of each Foreign Subsidiary directly owned
by the Company and/or by any other Obligor which is a Domestic Subsidiary,
65% (and, from and after the occurrence of an Event of Default, 100%) of
the total number of shares or other ownership interests having ordinary
voting power for the election of the board of directors (or equivalent
body) of such Foreign Subsidiary (the "Ordinary Shares") and 100% of each
other class or type of ownership interests of such Foreign Subsidiary,
provided that upon the occurrence of an Event of Default, the Obligors
will, with respect to any Ordinary Shares not theretofore comprising
Pledged Collateral, upon the request of the Collateral Agent, take all
action required under this Agreement (including, without limitation,
Section 4.01) in the case of Pledged Collateral.
(ii) So long as no Event of Default shall have occurred and be
continuing, the Obligors shall have the right to exercise all voting,
consensual and other powers of ownership pertaining to the Pledged
Collateral, provided that each Obligor agrees that it will not vote the
Pledged Collateral pledged by it hereunder in any manner that is
inconsistent with the terms of this Agreement, the Credit Agreement or any
such other instrument or agreement; and the Collateral Agent shall execute
and deliver to the Obligors or cause to be executed and delivered to the
Obligors all such proxies, powers of attorney, dividend and other orders,
and all such instruments, without recourse, as the Obligors may reasonably
request for the purpose of enabling the Obligors to exercise the rights and
powers that they are entitled to exercise pursuant to this paragraph
(a)(ii).
(iii) No Subsidiary of the Company shall be restricted from
declaring and paying to any Obligor any dividends or distributions in
respect of its ownership interests held by
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the Obligor, provided that all such dividends and distributions shall be
paid directly to the Depositary Agent for deposit into the General Receipt
& Disbursement Account and shall be held therein and/or applied for the
purposes permitted under the Depositary Agreement. If, notwithstanding the
foregoing, such dividends or distributions shall be paid to any Obligor,
the same shall be held by such Obligor in trust for the Collateral Agent
and the other Secured Parties, segregated from the other funds of such
Obligor, and promptly turned over to the Depositary Agent for deposit into
the aforesaid account.
(b) Assigned and Other Agreements. Anything herein to the contrary
notwithstanding, each Obligor party to any Assigned Agreement or other relevant
agreement shall remain liable under such Assigned Agreement or other agreement
to the extent set forth therein to perform all of its duties and obligations
thereunder to the same extent as if this Agreement had not been executed. The
exercise by the Collateral Agent of any of the rights hereunder shall not
release any Obligor from any of its duties or obligations under any Assigned
Agreement or any such other agreement, except to the extent provided therein or
any consent and agreement relating thereto and upon foreclosure and assignment
of such Assigned Agreement. Neither the Collateral Agent nor any of the other
Secured Parties shall have any obligation or liability under any Assigned
Agreement or such other agreement, by reason of the existence of this Agreement,
nor shall the Collateral Agent, nor any of the other Secured Parties, be
obligated to perform any of the obligations or duties of any Obligor thereunder
or to take action to collect or enforce any claim for payment assigned
hereunder, except to the extent provided therein or any such consent and
agreement. If any Obligor fails to perform any agreement contained herein or in
any of the Assigned Agreements or other agreements constituting part of the
Collateral required to be performed by such Obligor, within 30 days after
receipt by the Company of written notice from the Collateral Agent informing it
of such failure, the Collateral Agent may itself perform, or cause the
performance of, such agreement, and the expenses of the Collateral Agent
incurred in connection therewith shall be payable by the Company and shall be
Secured Obligations entitled to the benefits of the collateral security provided
pursuant to Article III.
(c) Intellectual Property.
(i) For the purpose of enabling the Collateral Agent to exercise
rights and remedies under Section 4.05 at such time as the Collateral Agent
shall be lawfully entitled to exercise such rights and remedies, and for no
other purpose, each Obligor hereby grants to the Collateral Agent, to the
extent assignable, an irrevocable, non-exclusive license (exercisable
without payment of royalty or other compensation to such Obligor) to use,
assign, license or sublicense any of the Intellectual Property now owned or
hereafter acquired by such Obligor, wherever the same may be located,
including in such license reasonable access to all media in which any of
the licensed items may be recorded or stored and to all computer programs
used for the compilation or printout thereof.
(ii) Notwithstanding anything contained herein to the contrary,
but subject to the provisions of Section 7.04 of the Credit Agreement that
limit the right of the Obligors to dispose of their property, so long as no
Event of Default shall have occurred and be continuing, the Obligors will
be permitted to exploit, use, enjoy, protect, license, sublicense, assign,
sell, dispose of or take other actions with respect to the Intellectual
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Property in the ordinary course of the business of the Obligors. In
furtherance of the foregoing, unless an Event of Default shall have
occurred and be continuing the Collateral Agent shall from time to time,
upon the request of the respective Obligor through the Company, execute and
deliver any instruments, certificates or other documents, in the form so
requested, that such Obligor through the Company shall have certified are
appropriate (in their judgment) to allow them to take any action permitted
above (including relinquishment of the license provided pursuant to
paragraph (i) immediately above as to any specific Intellectual Property).
Further, upon the payment in full of all of the Secured Obligations and
cancellation or termination of the Commitments or earlier expiration of
this Agreement or release of the Collateral, the Collateral Agent shall
grant back to the Obligors the license granted pursuant to said paragraph
(i). The exercise of rights and remedies under Section 4.05 by the
Collateral Agent shall not terminate the rights of the holders of any
licenses or sublicenses theretofore granted by the Obligors in accordance
with the first sentence of this paragraph (ii).
(d) FCC License. The Company agrees to request a transfer of the
FCC License to a wholly-owned Subsidiary of the Company pursuant to Section 18.H
of the Space System Contract at the earliest time as the Company reasonably
believes that it can satisfy the qualifications of an FCC licensee under
applicable law and FCC regulations and policy. Upon such transfer the FCC
License shall be held in the name of such Subsidiary and, subject to Section
5.13 and any restriction under any then effective Government Rule, the Company
shall forthwith comply with the requirements of Section 4.01 in order to provide
the Collateral Agent a first priority perfected security interest in all of the
ownership interests of such Subsidiary and the requirements of Section 6.12(a)
of the Credit Agreement with respect to such Subsidiary. If the Company shall
fail for any reason to make such request at such time and such failure shall
continue unremedied for a period of 30 days or any Event of Default shall have
occurred and be continuing, the Collateral Agent is hereby authorized to make
such request and the Company will take any action that the Collateral Agent
shall reasonably request in order to facilitate such transfer to a Subsidiary of
the Company as contemplated hereby. Notwithstanding anything herein or in the
Credit Agreement to the contrary, the Company will not create, incur, assume or
permit to exist any Lien on the ownership interests of such Subsidiary or the
assets thereof, including, without limitation, the FCC License (except any
Permitted Lien). If there shall be a change in law, or the rules or policies of
the FCC which would permit the granting of a security interest in the FCC
License prior to or after the date of the transfer of the FCC License as
contemplated herein, the Company will, and will cause its relevant License
Subsidiary to, take such action as the Administrative Agent may reasonably
request (including, without limitation an amendment to this Agreement or the
execution and delivery of a new security agreement with respect thereto on terms
comparable hereto in all material respects), in order to create a first priority
perfected security interest in the FCC License in favor of the Collateral Agent
for the benefit of the Secured Parties.
(e) Satellites. Each Obligor agrees and acknowledges that the
Collateral includes satellites and that the Collateral Agent intends to perfect
its security interest in and Lien on all such satellites. Without limiting in
any respect any other provisions of this Agreement, each Obligor agrees to
assist the Collateral Agent in achieving such perfection through whatever method
or methods the Collateral Agent may from time to time reasonably request,
including
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(i) filing UCC financing statements on the basis that satellites constitute
"mobile goods" under the Uniform Commercial Code, (ii) filing UCC financing
statements or other Lien perfection documents in each jurisdiction in which any
satellite is manufactured, integrated or processed, from where any satellite is
launched, from where it is controlled or in which it may from time to time be
deemed located to the extent such filing in such jurisdiction is reasonably
required in order to perfect and maintain the perfection of the Collateral
Agent's security interests therein and Liens thereon, (iii) taking all actions
required to be consistent with present and future practices of third-party
creditors intending to perfect security interests in satellites owned by United
States persons launched from the United States or from any other location from
which the satellites for the Iridium System have been, or are intended to be,
launched, and (iv) taking all actions reasonably required from time to time to
create, maintain and perfect security interests in satellites (both before and
after launch and while in orbit) as specified in any United States, foreign or
international law, regulation, convention or treaty relating to the creation,
perfection and/or priority of security interests and Liens in satellites that is
applicable to satellites of the type deployed in the Iridium System.
(f) Rolling Stock. At any time after the occurrence and during the
continuance of an Event of Default, each Obligor shall, upon the request of the
Collateral Agent, deliver to the Collateral Agent originals of the certificates
of title or ownership for the Rolling Stock owned by it with a fair market value
in excess of $100,000 with the Collateral Agent listed as lienholder and take
such other action as the Collateral Agent shall reasonably deem appropriate to
perfect the security interest created hereunder in all such Rolling Stock. Upon
the sale of any such Rolling Stock permitted under the Credit Agreement, so long
as no Event of Default shall have occurred and be continuing, upon the request
of any Obligor, the Collateral Agent shall execute and deliver to such Obligor
such instruments as such Obligor shall reasonably request to remove the notation
of the Collateral Agent as lienholder on the certificate of title or ownership
for any such Rolling Stock; provided that any such instruments shall be
delivered, and the release effective only upon receipt by the Collateral Agent
of a certificate from such Obligor stating that the Rolling Stock the lien on
which is to be released is to be sold or has suffered a casualty loss (with
title thereto passing to the casualty insurance company therefor in settlement
of the claim for such loss).
(g) Governmental Collateral. The Company shall notify the
Collateral Agent of any Collateral which constitutes a claim against the United
States or any foreign government or state or any instrumentality, agency or
subdivision thereof, the assignment of which claim is restricted by applicable
law or requires particular procedures. Upon the request of the Collateral Agent,
the relevant Obligor will take all reasonable actions required to comply, to the
Collateral Agent's satisfaction, with such legal requirements and procedures
applicable with respect to such Collateral, including, without limitation, the
Assignment of Claims Act of 1940, as amended, or any similar applicable law.
(h) MOU Agreements. At any time after the occurrence and during
the continuation of an Event of Default, the Collateral Agent shall have the
right to exercise all rights, powers and remedies of the Company under the MOU
Agreements, including without limitation the right to require Motorola to
provide its guarantee(s) pursuant to Section 1(e) of the Memorandum of
Understanding. The Company agrees to the Collateral Agent exercising such
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rights, powers and/or remedies directly against Motorola under such
circumstances, and, so long as any Event of Default shall be continuing, agrees
not to exercise any such right, power or remedy without the prior written
consent of the Collateral Agent. Without limiting the foregoing, upon the
occurrence of a Trigger Event, the Company agrees to require Motorola to perform
the Motorola Guarantee Obligation in accordance with Section 8.09 of the Credit
Agreement. If the Company shall fail for any reason to make any demand upon
Motorola required under said Section 8.09, such failure shall constitute an
Event of Default under the Credit Agreement and the Collateral Agent is hereby
authorized to make such demand upon Motorola and the Company will take any
action that the Collateral Agent shall reasonably request in order to effect the
Motorola Guarantee.
SECTION 4.05. Events of Default. During the period during which an
Event of Default shall have occurred and be continuing:
(a) each Obligor shall, at the request of the Collateral Agent,
assemble the Collateral owned by it at such place or places, reasonably
convenient to both the Collateral Agent and such Obligor, designated in its
request;
(b) the Collateral Agent may make any reasonable compromise or
settlement deemed desirable with respect to any of the Collateral and may
extend the time of payment, arrange for payment in installments, or
otherwise modify the terms of, any of the Collateral;
(c) the Collateral Agent shall have all of the rights and remedies
with respect to the Collateral of a secured party under the Uniform
Commercial Code (whether or not said Code is in effect in the jurisdiction
where the rights and remedies are asserted) and such additional rights and
remedies to which a secured party is entitled under the laws in effect in
any jurisdiction where any rights and remedies hereunder may be asserted,
including, without limitation, the right, to the maximum extent permitted
by law, to exercise all voting, consensual and other powers of ownership
pertaining to the Collateral as if the Collateral Agent were the sole and
absolute owner thereof (and each Obligor agrees to take all such action as
may be reasonably necessary to give effect to such right);
(d) the Collateral Agent in its discretion may, in its name or in
the name of the Obligors or otherwise, demand, ▇▇▇ for, collect or receive
any money or property at any time payable or receivable on account of or in
exchange for any of the Collateral, but shall be under no obligation to do
so; and
(e) the Collateral Agent may, upon 30 days' prior written notice
to the Obligors of the time and place, with respect to the Collateral or
any part thereof that shall then be or shall thereafter come into the
possession, custody or control of the Secured Parties or any of their
respective agents, sell, lease, assign or otherwise dispose of all or any
part of such Collateral, at such place or places as the Collateral Agent
deems best, and for cash or for credit or for future delivery, at public or
private sale, without demand of performance or notice of intention to
effect any such disposition or of the time or place thereof (except such
notice as is required above or by applicable statute and cannot be
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waived), and any Secured Party or anyone else may be the purchaser, lessee,
assignee or recipient of any or all of the Collateral so disposed of at any
public sale (or, to the extent permitted by law, at any private sale) and
thereafter hold the same absolutely, free from any claim or right of
whatsoever kind, including any right or equity of redemption (statutory or
otherwise), of the Obligors, any such demand, notice and right or equity
being hereby expressly waived and released. In the event of any sale,
assignment, or other disposition of any of the Trademark Collateral, the
goodwill connected with and symbolized by the Trademark Collateral subject
to such disposition shall be included, and the Obligors shall supply to the
Collateral Agent or its designee, for inclusion in such sale, assignment or
other disposition, all Intellectual Property relating to such Trademark
Collateral. The Collateral Agent may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from
time to time by announcement at the time and place fixed for the sale, and
such sale may be made at any time or place to which the sale may be so
adjourned.
Notwithstanding anything herein or in any other Security Document
to the contrary, neither the Collateral Agent nor any of the other Secured
Parties shall sell, lease, assign or otherwise dispose, or cause the sale,
lease, assignment or other disposition, of all or any part of the Collateral
pursuant to this Agreement unless not less than 10 days prior thereto the
Collateral Agent shall have made a demand (or caused a demand to be made) in
respect of the Reserve Capital Call Obligations in accordance with Section 4.02
of the Iridium LLC Agreement, provided that (i) nothing herein shall be
construed to limit the rights of the Collateral Agent to exercise any other
remedies hereunder prior to any such sale, lease, assignment or other
disposition or from and after any event affecting any Credit Party or Iridium
LLC described in clause (i) or (j) of Section 9.01 of the Credit Agreement and
(ii) the requirement of this paragraph shall not apply if the aggregate
outstanding amount in respect of the Loans (net of any cash balances in the
Depositary Accounts) shall exceed the aggregate amount of the Reserve Capital
Call Obligations.
The proceeds of each collection, sale or other disposition under
this Section, including by virtue of the exercise of the license granted to the
Collateral Agent in Section 4.04(c), shall be applied in accordance with Section
4.09. Any such sale or other disposition under this Section shall be conducted
in a commercially reasonable manner.
The Obligors recognize that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Collateral Agent may be compelled, with respect to any sale
of all or any part of the Collateral, to limit purchasers to those who will
agree, among other things, to acquire the Collateral for their own account, for
investment and not with a view to the distribution or resale thereof. The
Obligors acknowledge that any such private sales may be at prices and on terms
less favorable to the Collateral Agent than those obtainable through a public
sale without such restrictions, and, notwithstanding such circumstances, agree
that any such private sale shall be deemed to have been made in a commercially
reasonable manner and that the Collateral Agent shall have no obligation to
engage in public sales and no obligation to delay the sale of any Collateral for
the period of time necessary to permit the respective issuer thereof to register
it for public sale.
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SECTION 4.06. Deficiency. If the proceeds of sale, collection or
other realization of or upon the Collateral pursuant to Section 4.05 are
insufficient to cover the costs and expenses of such realization and the payment
in full of the Secured Obligations, the Obligors shall remain (in the case of
each Subsidiary Obligor, jointly and severally) liable for any deficiency.
SECTION 4.07. Removals, Etc. Without at least 30 days' prior
written notice to the Collateral Agent, no Obligor shall (i) maintain the
original or "master" copies of any of its books and records with respect to the
Collateral at any office or maintain its principal place of business at any
place, or (except with respect to Collateral in the possession of the Collateral
Agent) permit any property to be located anywhere other than at one of the
locations identified in Annex 6 under its name (other than satellites in orbit
or "Foreign Local Accounts" referred to in the Depositary Agreement), (ii)
change its name from the name shown on the signature pages hereto or (iii) adopt
or do business under any name other than a name beginning with the word
"Iridium".
SECTION 4.08. Private Sale. No Secured Party shall incur any
liability as a result of the sale of the Collateral, or any part thereof, at any
private sale pursuant to Section 4.05 conducted in a commercially reasonable
manner. Each Obligor hereby waives any claims against the Secured Parties
arising by reason of the fact that the price at which the Collateral may have
been sold at such a private sale was less than the price that might have been
obtained at a public sale or was less than the aggregate amount of the Secured
Obligations, even if the Collateral Agent accepts the first offer received and
does not offer the Collateral to more than one offeree.
SECTION 4.09. Application of Proceeds. Except as otherwise herein
expressly provided, the proceeds of any collection, sale or other realization of
all or any part of the Collateral pursuant hereto, and any other cash at the
time held by the Collateral Agent under this Agreement, shall be applied by the
Collateral Agent:
First, to the payment of the costs and expenses of such
collection, sale or other realization, including reasonable out-of-pocket
costs and expenses of the Collateral Agent and the reasonable fees and
expenses of its agents and counsel, and all reasonable expenses incurred
and advances made by the Collateral Agent in connection therewith;
Next, to the payment in full of the Secured Obligations, in each
case equally and ratably in accordance with the respective amounts thereof
then due and owing or as the Lenders holding the same may otherwise agree;
and
Finally, to the payment to the respective Obligor, or their
respective successors or assigns, or as a court of competent jurisdiction
may direct, of any surplus then remaining.
As used in this Article, "proceeds" of Collateral means cash,
securities and other property realized in respect of, and distributions in kind
of, Collateral, including any thereof received under any reorganization,
liquidation or adjustment of debt of the Obligors or any issuer of or obligor on
any of the Collateral.
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SECTION 4.10. Attorney-in-Fact. Without limiting any rights or
powers granted by this Agreement to the Collateral Agent while no Event of
Default has occurred and is continuing, upon the occurrence and during the
continuance of any Event of Default the Collateral Agent is hereby appointed the
attorney-in-fact of each Obligor for the purpose of carrying out the provisions
hereof and taking any action and executing any instruments that the Collateral
Agent may reasonably deem necessary or advisable to accomplish the purposes
hereof, which appointment as attorney-in-fact is irrevocable and coupled with an
interest. Without limiting the generality of the foregoing, so long as the
Collateral Agent shall be entitled under this Article IV to make collections in
respect of the Collateral, the Collateral Agent shall have the right and power
to receive, endorse and collect all checks made payable to the order of any
Obligor representing any dividend, payment or other distribution in respect of
the Collateral or any part thereof and to give full discharge for the same.
SECTION 4.11. Perfection. Prior to or concurrently with the
execution and delivery of this Agreement, each Obligor shall (i) file such
financing statements and other documents in such offices as the Collateral Agent
may reasonably request to perfect the security interests granted by Article III,
(ii) take any action (including establishing satisfactory control arrangements)
as the Collateral Agent may reasonably request to perfect the pledge of any
ownership interests for purposes of Article 8 of the Uniform Commercial Code
and/or (iii) deliver to the Collateral Agent all certificates identified in
Annex 1, accompanied by undated stock or transfer powers duly executed in blank.
SECTION 4.12. Release of Collateral; Termination.
(a) Upon any disposition of property permitted under the Credit
Documents or any disposition to which the Required Lenders have consented or
upon any disposition in connection with any Event of Loss, the Lien on such
property shall be released, and the Collateral Agent shall promptly execute and
deliver, at the expense of the relevant Obligor, such release and/or other
documents related thereto as reasonably requested by such Obligor.
(b) When all Secured Obligations shall have been paid in full and
the Commitments of the Lenders under the Credit Agreement shall have expired or
been terminated, this Agreement shall terminate, and the Collateral Agent shall
forthwith cause to be assigned, transferred and delivered, against receipt but
without any recourse, warranty or representation whatsoever, any remaining
Collateral and money received in respect thereof, to or on the order of the
respective Obligor and to be released and canceled all licenses and rights
referred to in Section 4.04(c). The Collateral Agent shall also execute and
deliver to the respective Obligor upon such termination such Uniform Commercial
Code termination statements and such other documentation as shall be reasonably
requested by the respective Obligor to effect the termination and release of the
Liens on the Collateral.
SECTION 4.13. Further Assurances. Each Obligor agrees that, from
time to time upon the written request of the Collateral Agent, such Obligor will
execute and deliver such further documents and do such other acts and things as
the Collateral Agent may reasonably request in order fully to effect the
purposes of this Agreement. Without limiting the foregoing,
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each Obligor hereby authorizes the Collateral Agent to file one or more
financing or continuation statements, and amendments thereto, relative to all or
any part of the Collateral without the signature of such Obligor where permitted
by law, provided that copies of any such statement or amendment thereto shall
promptly be delivered to the Company.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. No Waiver. No failure on the part of the Collateral
Agent or any other Secured Party to exercise, and no course of dealing with
respect to, and no delay in exercising, any right, power or remedy hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise by
the Collateral Agent or any other Secured Party of any right, power or remedy
hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies herein are cumulative and are not
exclusive of any remedies provided by law.
SECTION 5.02. Notices. All notices, requests, consents and demands
hereunder shall be in writing and telecopied or delivered to the intended
recipient at (i) in the case of each Obligor, the "Address for Notices" for the
Company specified pursuant to Section 11.01 of the Credit Agreement and (ii) in
the case of the Collateral Agent, at the "Address for Notices" for the
Administrative Agent specified in Section 11.01 of the Credit Agreement, and
shall be deemed to have been given at the times specified in said Section 11.01.
SECTION 5.03. Expenses.
(a) The Obligors jointly and severally agree to reimburse each of
the Lenders and the Collateral Agent for all reasonable costs and expenses of
the Lenders and the Collateral Agent (including, without limitation, the
reasonable fees and expenses of legal counsel) in connection with (i) any Event
of Default and any enforcement or collection proceeding resulting therefrom,
including, without limitation, all manner of participation in or other
involvement with (w) performance by the Collateral Agent of any obligations of
the Obligors in respect of the Collateral that the Obligors have failed or
refused to perform, (x) bankruptcy, insolvency, receivership, foreclosure,
winding up or liquidation proceedings, or any actual or attempted sale, or any
exchange, enforcement, collection, compromise or settlement in respect of any of
the Collateral, and for the care of the Collateral and defending or asserting
rights and claims of the Collateral Agent in respect thereof, by litigation or
otherwise, including expenses of insurance, (y) judicial or regulatory
proceedings and (z) workout, restructuring or other negotiations or proceedings
(whether or not the workout, restructuring or transaction contemplated thereby
is consummated) and (ii) the enforcement of this Section, and all such costs and
expenses shall be Secured Obligations entitled to the benefits of the collateral
security provided pursuant to Article III.
Security Agreement
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(b) The Company will pay all filing, registration and recording
fees or refiling, re-registration and re-recording fees, and all expenses
incident to the execution and delivery of this Agreement, any agreement
supplemental hereto and any instruments of further assurance, and all federal,
state, county and municipal stamp taxes and other taxes, duties, imposts,
assessments and charges arising out of or in connection with the execution and
delivery of this Agreement, any agreement supplemental hereto and any
instruments of further assurance.
(c) The Company will pay, before any fine, penalty, interest or
cost attaches thereto, all taxes, assessments and other governmental or
non-governmental charges or levies now or hereafter assessed or levied against
the Collateral or upon the Liens provided for herein (except for taxes and
assessments not then delinquent or which the Company may, pursuant to the
provisions of Section 6.03 of the Credit Agreement, permit to remain unpaid) as
well as pay, or cause to be paid, all claims for labor, materials or supplies
which, if unpaid, might by law become a Lien (other than a Lien permitted under
Section 7.02 of the Credit Agreement) thereon, and will retain copies of, and,
upon request, permit the Collateral Agent to examine, receipts showing payment
of any of the foregoing.
SECTION 5.04. Amendments, Etc. The terms of this Agreement may be
waived, altered or amended only by an instrument in writing duly executed by
each Obligor and the Collateral Agent. Any such amendment or waiver shall be
binding upon the Collateral Agent, each other Secured Party and each Obligor.
SECTION 5.05. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the respective successors and assigns
of each Obligor, the Collateral Agent and each other Secured Party provided,
however, that no Obligor shall assign or transfer its rights hereunder without
the prior written consent of the Collateral Agent.
SECTION 5.06. Captions. The caption and section headings used
herein are for convenience of reference only, are not part of this Agreement and
shall not affect the construction of, or be taken into consideration in
interpreting, this Agreement.
SECTION 5.07. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract.
SECTION 5.08. Governing Law; Jurisdiction; Consent to Service of
Process.
(a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) Each Obligor hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent
Security Agreement
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permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Collateral Agent or any other Secured Party may otherwise have to bring any
action or proceeding relating to this Agreement against any Obligor or its
properties in the courts of any jurisdiction.
(c) Each Obligor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) To the extent that any Obligor may be or become entitled, in
any jurisdiction in which judicial proceedings may at any time be commenced with
respect to this Agreement, to claim for itself or its property or revenues any
immunity from suit, court jurisdiction, attachment prior to judgment, attachment
in aid of execution of a judgment, execution of a judgment or from any other
legal process or remedy relating to its obligations under this Agreement and to
the extent that in any such jurisdiction there may be attributed such an
immunity (whether or not claimed), such Obligor hereby irrevocably agrees not to
claim and hereby irrevocably waives such immunity to the fullest extent
permitted by the laws of such jurisdiction.
SECTION 5.09. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 5.10. No Third Party Beneficiaries. The agreements of the
parties hereto are solely for the benefit of the Obligors, the Collateral Agent
and the other Secured Parties, and no other Person (including, without
limitation, any other Credit Party, any contractor, subcontractor, supplier or
materialman furnishing supplies, goods or services to or for the benefit of the
Iridium Business or any other creditor of the Company or any of its
Subsidiaries) shall have any rights hereunder.
SECTION 5.11. Agents and Attorneys-in-Fact. The Collateral Agent
may employ agents and attorneys-in-fact in connection herewith and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith.
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SECTION 5.12. Severability. Any provision of this Agreement held
to be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 5.13. FCC Approval. Notwithstanding any other provision of
this Agreement, from and after the transfer of the FCC License to the Company or
any of its Subsidiaries pursuant to Section 18.H of the Space System Contract,
no action shall be taken hereunder by the Collateral Agent or any other Secured
Party with respect to any item of Collateral that would constitute or result in
any assignment of the FCC License or any change of control of the holder of the
FCC License, if, under then existing applicable law, regulations and FCC
policies, such assignment or change of control would require the prior approval
of the FCC. The Company agrees to take, or to cause its Subsidiaries to take, at
the Company's expense, any action that the Collateral Agent may reasonably
request in order to obtain from the FCC such approval as may be necessary (a) to
enable the Collateral Agent to exercise and enjoy the full rights and benefits
granted to the Collateral Agent by this Agreement and each other agreement,
instrument and document delivered to the Collateral Agent in connection herewith
and (b) for any action or transaction contemplated by this Agreement for which
such approval is or shall be required by law, and specifically, without
limitation, upon request by the Collateral Agent, to prepare, sign and file with
the FCC the assignor's or transferor's portion of any application or
applications for consent to the assignment of any license or transfer of control
necessary or appropriate under the FCC's rules and regulations, or for approval
of any sale of the Collateral provided by this Agreement by or on behalf of the
Collateral Agent or assumption by the Collateral Agent of voting rights relating
thereto effected in accordance with the terms hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Pledge and
Security Agreement to be duly executed and delivered as of the day and year
first above written.
COMPANY
IRIDIUM OPERATING LLC
By
-------------------------
Name:
Title:
Security Agreement
180
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SUBSIDIARY GUARANTORS
IRIDIUM CAPITAL CORPORATION
By
------------------------
Name:
Title:
IRIDIUM IP LLC
By
------------------------
Name:
Title:
IRIDIUM ROAMING LLC
By
------------------------
Name:
Title:
IRIDIUM FACILITIES CORPORATION
By
------------------------
Name:
Title:
Security Agreement
181
COLLATERAL AGENT
THE CHASE MANHATTAN BANK,
as Collateral Agent
By
------------------------
Name:
Title:
Security Agreement
182
ANNEX 1
PLEDGED COLLATERAL
[See Sections 2(b) and (c) and 3(a) and (b)]
Type or
Class of Number of
Certificate Registered Ownership Shares or
Issuer Nos. (if any) Owner Interests Interests
------ ------------- ---------- --------- ---------
Iridium Capital 3 IOLLC Common Stock 100%
Corporation
Iridium Facilities 1 IOLLC Common Stock 100%
Corporation
Iridium Roaming 1 IOLLC Membership Interests 100%
LLC
Iridium IP LLC 1 IOLLC Membership Interests 100%
Iridium Canada
Facilities, Inc. C-3, C-4 IOLLC Common Stock 65%
Annex 1 to Security Agreement
183
ANNEX 2
LIST OF COPYRIGHTS, COPYRIGHT REGISTRATIONS AND
APPLICATIONS FOR COPYRIGHT REGISTRATIONS
[See Section 2(d)]
NONE
Annex 2 to Security Agreement
184
ANNEX 3
LIST OF PATENTS AND PATENT APPLICATIONS
[See Section 2(d)]
Patents: None
Patent Applications: See attached (All intellectual property interests held by
Iridium IP LLC)
Annex 3 to Security Agreement
185
ANNEX 4
LIST OF TRADE NAMES, TRADEMARKS, SERVICES MARKS,
TRADEMARK AND SERVICE ▇▇▇▇ REGISTRATIONS AND
APPLICATIONS FOR TRADEMARK AND SERVICE ▇▇▇▇ REGISTRATIONS
[See Section 2(d)]
U.S. TRADEMARKS
See attached (All intellectual property interests held by Iridium IP LLC)
FOREIGN TRADEMARKS
See attached (All intellectual property interests held by Iridium IP LLC)
Annex 4 to Security Agreement
186
ANNEX 5
LIST OF CONTRACTS, LICENSES AND OTHER AGREEMENTS
[See Section 2(d), (e) and (f)]
(Iridium Operating LLC is party to all contracts listed below)
------------------------------------------------------------------------------------------------------
COMPANY CONTRACT DATE
------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ Consulting Iridium Master Agreement between 12/16/96
Iridium LLC and ▇▇▇▇▇▇▇▇
Consulting LLP
------------------------------------------------------------------------------------------------------
Motorola Iridium Operations & Maintenance 12/15/92
Contract between Motorola, Inc.
and Iridium LLC, as amended
------------------------------------------------------------------------------------------------------
Motorola Iridium Space System Contract between 12/15/92
Motorola, Inc. and Iridium LLC, as
amended
------------------------------------------------------------------------------------------------------
Motorola Iridium Terrestrial Network 07/29/93
Development Contract between
Motorola, Inc. and Iridium LLC, as
amended
------------------------------------------------------------------------------------------------------
Gateways Gateway Business System Deployment Varies with
and License Agreement Gatetway
------------------------------------------------------------------------------------------------------
Annex 5 to Security Agreement
187
ANNEX 6
LIST OF LOCATIONS
[See Section 5.07]
Iridium Operating LLC
Arizona - Maricopa County
California
Delaware - New Castle County
District of Columbia
Hawaii
Virginia - Fairfax County
Virginia - Loudoun County
Iridium Facilities Corporation
Arizona - Maricopa County
Delaware - New Castle County
District of Columbia
Hawaii
Virginia - Fairfax County
Virginia - Loudoun County
Iridium Capital Corporation
Delaware - New Castle County
District of Columbia
Iridium IP LLC
Delaware - New Castle County
District of Columbia
Iridium Roaming LLC
Delaware - ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Facilities
New Brunswick, Canada
Annex 6 to Security Agreement
188
EXHIBIT C
PLEDGE AND SECURITY AGREEMENT
PLEDGE AND SECURITY AGREEMENT dated as of December ___, 1998
between: IRIDIUM LLC, a limited liability company duly organized and validly
existing under the laws of the State of Delaware ("Iridium LLC"); and THE CHASE
MANHATTAN BANK, as collateral agent for the Secured Parties referred to below
(in such capacity, together with its successors in such capacity, the
"Collateral Agent").
Iridium Operating LLC (the "Company"), a Delaware limited
liability company and Wholly Owned Subsidiary of Iridium LLC, certain lenders,
the Global Lead Arrangers, The Chase Manhattan Bank as Administrative Agent and
Collateral Agent, and Barclays Bank PLC, as Documentation Agent are parties to a
Senior Secured Credit Agreement dated as of December 23, 1998 (as modified,
supplemented or otherwise modified and in effect from time to time, the "Credit
Agreement"), providing, subject to the terms and conditions thereof, for loans
to be made by said lenders to the Company in an aggregate principal amount not
exceeding $800,000,000.
To induce said lenders to enter into the Credit Agreement and to
extend credit thereunder and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Iridium LLC has agreed
to pledge and grant a security interest in the Collateral (as hereinafter
defined) as security for the Secured Obligations (as so defined). Accordingly,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. Capitalized terms used but not
defined herein shall have their respective meanings in the Credit Agreement. In
addition, as used herein:
"Collateral" has the meaning assigned to such term in
Section 3.01.
"Iridium Agreements" means this Agreement, the Memorandum of
Understanding and the Agreement Regarding Guarantee.
"Iridium LLC Equity Issuance" means (a) any issuance or sale by
Iridium LLC of (i) any of its membership interests, capital stock or other
equity interests, (ii) any warrants or options exercisable in respect
thereof or (iii) any other security or instrument representing an equity
interest in Iridium LLC, including any evidence of Indebtedness, interests,
other securities or rights that are exchangeable for or exercisable or
convertible
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189
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into equity interests of Iridium LLC, either immediately or upon the
arrival of a specified date or the occurrence of a specified event
(excluding, in the case of this clause (a), any issuance or sale pursuant
to the obligations under the Agreement Regarding Guarantee relating to
compensation in the form of equity interests of Iridium LLC or warrants
therefor) or (b) the receipt by Iridium LLC after the date hereof of any
capital contribution (whether or not evidenced by any equity security
issued by the recipient of such contribution).
"Iridium LLC Members" means each of the holders from time to time
of membership interests of Iridium LLC.
"Iridium Services" means the wholesale distribution by the Company
of the services referred to in the "Iridium Services" section of Part 3 of
the Information Memorandum as "Iridium World Satellite Services", "Iridium
World Roaming Services", "Iridium World Page Services", "Iridium World
Calling Card Services" and "Aeronautical Services".
"IWCL" means Iridium World Communications Ltd., a Bermuda company.
"IWCL Equity Issuance" means (a) any issuance of sale by IWCL of
(i) any of its membership interests, capital stock or other equity
interests, (ii) any warrants or options exercisable in respect thereof or
(iii) any other security or instrument representing an equity interest in
IWCL, including any evidence of Indebtedness, interests, other securities
or rights that are exchangeable for or exercisable or convertible into
equity interests of IWCL, either immediately or upon the arrival of a
specified date or the occurrence of a specified event (excluding, in the
case of this clause (a), any issuance or sale pursuant to the obligations
under the Agreement Regarding Guarantee relating to compensation in the
form of equity interests of IWCL or warrants therefor) or (b) the receipt
by IWCL after the date hereof of any capital contribution (whether or not
evidenced by any equity security issued by the recipient of such
contribution).
"Management Services Agreement" means the Amended and Restated
Management Services Agreement dated as of December 18, 1997 among IWCL,
Iridium LLC and the Company with respect to, among other things, the
provision of management, personnel and administrative services by Iridium
LLC to the Company.
"Material Adverse Effect" means a material adverse effect on (a)
the business, operations, assets, condition (financial or otherwise) or
prospects of the Company and any of its Subsidiaries taken as a whole, (b)
the ability of Iridium LLC to perform its obligations hereunder or under
the Management Services Agreement, (c) the validity or enforceability of
the Liens under any Security Document (including without limitation the
Liens created hereunder) or on the Collateral thereunder or hereunder or
the validity or enforceability thereof or hereof or (d) the operation of
the Iridium System.
"Related Business" means the business of developing, owning,
engaging in and dealing with all or any part of the business of the
provision of telecommunications
Parent Security Agreement
190
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services and businesses and (a) reasonably related extensions thereof,
including but not limited to the manufacture, purchase, ownership,
operation, leasing, licensing, financing and selling of, and generally
dealing in or with, communications satellites, earth stations, gateways,
ground infrastructure and subscriber equipment, used or intended for use
with telecommunications services and businesses and (b) any other
activities that are reasonably related to the provision of
telecommunications services and businesses. For avoidance of doubt,
"Related Business" shall include any business or activities carried out by
Iridium LLC or any Unrelated Subsidiary in connection with the development
of the next generation Iridium global wireless communications system.
"Reserve Capital Call Obligations" means the obligations of
certain of the Iridium LLC Members (as identified in Annex D to the Iridium
LLC Agreement) to purchase up to a total of 18,206,550 of additional Class
1 Interests of Iridium LLC at a price of $13.33 per interest pursuant to
Section 4.02 of the Iridium LLC Agreement.
"Responsible Officer" means the chief executive officer, chief
financial officer or general counsel or any senior vice president of
Iridium LLC or, with respect to Section 4.02, any vice president of Iridium
LLC.
"Secured Obligations" means collectively, (a) all obligations of
the Company in respect of principal of and interest on the Loans and all
other amounts owing by the Company and its Subsidiaries to the Lenders or
the Agents under the Credit Agreement, the other Credit Documents and all
amounts from time to time owing to any Lender or any Affiliate of any
Lender by the Company or any of its Subsidiaries in respect of any Hedging
Agreement, (b) all obligations of each Subsidiary Guarantor under the
Subsidiary Guarantee Agreement and (c) all obligations of Iridium LLC to
the Collateral Agent and other Secured Parties hereunder.
"Secured Parties" means the Agents (including the Collateral
Agent) and the Lenders.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect from time to time in the State of New York.
"Unrelated Subsidiary" means a Subsidiary of Iridium LLC (other
than the Company) engaged in a Related Business that is not a Subsidiary of
the Company.
SECTION 1.02. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified, including an amendment
and restatement thereof, but subject to any
Parent Security Agreement
191
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restrictions on such amendments, supplements or modifications set forth herein,
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns or, in the case of any Government Authority, any
entity succeeding to any or all of the functions of such Government Authority,
(c) the words "herein", "hereof" and "hereunder", and words of similar import,
shall be construed to refer to this Agreement in its entirety and not to any
particular provision hereof, (d) all references herein to Sections and Annexes
shall be construed to refer to Sections of, and Annexes to, this Agreement and
(e) the words "asset" and "property" shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Iridium LLC represents and warrants to the Secured Parties that:
SECTION 2.01. Corporate Existence. Iridium LLC: (a) is a limited
liability company duly organized and validly existing under the laws of the
State of Delaware; (b) has all requisite corporate or other power, and has all
material governmental licenses, authorizations, consents and approvals necessary
to own its assets and carry on its business as now being or as proposed to be
conducted; and (c) is qualified to do business in all jurisdictions in which the
nature of the business conducted by it makes such qualification necessary and
where failure so to qualify could (either individually or in the aggregate)
reasonably to be expected to result in a Material Adverse Effect.
SECTION 2.02. No Breach. None of the execution and delivery of any
of the Iridium Agreements, the consummation of the transactions herein or
therein contemplated or compliance with the terms and provisions hereof or
thereof will conflict with or result in a breach of, or require any consent
under, the Iridium LLC Agreement or the Company LLC Agreement, or any applicable
law or regulation, or any material order, writ, injunction or decree of any
court or governmental authority or agency, or any material agreement or
instrument to which Iridium LLC or any of its Subsidiaries is a party or by
which any of them is bound or to which any of them is subject, or constitute a
default under any such agreement or instrument, or (except for Permitted Liens)
result in the creation or imposition of any Lien upon any of the Collateral
pursuant to the terms of any such agreement or instrument.
SECTION 2.03. Action. Iridium LLC has all necessary limited
liability company power and authority to execute, deliver and perform its
obligations under the Iridium Agreements; the execution, delivery and
performance by Iridium LLC of the Iridium Agreements have been duly authorized
by all necessary action on its part; and each Iridium Agreement has been duly
and validly executed and delivered by Iridium LLC and constitutes its legal,
valid and binding obligation, enforceable against Iridium LLC in accordance with
its terms, except as such enforceability may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium or other similar laws of general
applicability affecting the
Parent Security Agreement
192
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enforcement of creditors' rights and (b) the application of general principles
of equity (regardless of whether considered in a proceeding in equity or at
law).
SECTION 2.04. Approvals. No authorizations, approvals or consents
of, and no filings or registrations with, any Government Authority are necessary
for the execution, delivery or performance by Iridium LLC of any of the Iridium
Agreements or for the validity or enforceability hereof or thereof, except (i)
for filings and recordings in respect of the Liens created pursuant hereto and
(ii) that, at any time after the transfer of the FCC License to the Company or
any of its Subsidiaries pursuant to the Space System Contract, the exercise of
certain remedies hereunder may require the prior approval of the FCC.
SECTION 2.05. Financial Condition. Iridium LLC has heretofore
furnished to the Lenders the consolidated balance sheet and statements of
income, stockholders' equity and cash flows for Iridium LLC (i) as of and for
the fiscal year ended December 31, 1997, reported on by KPMG Peat Marwick LLP,
independent public accountants and (ii) as of and for the fiscal quarter and the
portion of the fiscal year ended September 30, 1998, certified by the chief
financial officer of Iridium LLC. Such financial statements present fairly, in
all material respects, the consolidated financial position and results of
operations and cash flows of Iridium LLC and its Subsidiaries as of such dates
and for such periods in accordance with GAAP, subject to year-end audit
adjustments and the absence of footnotes in the case of the statements referred
to in clause (ii) above. Since December 31, 1997, except as disclosed in the
Information Memorandum, there has been no change in the business, assets,
operations, prospects or condition, financial or otherwise, of Iridium LLC and
its Subsidiaries, taken as a whole, that (either individually or in the
aggregate) could reasonably be expected to result in a Material Adverse Effect.
SECTION 2.06. Proceedings. Except as described in Schedule V to
the Credit Agreement, there is no action, suit or proceeding at law or in equity
or by or before any Government Authority, arbitral tribunal or other similar
body now pending or, to the best knowledge of Iridium LLC, threatened against
Iridium LLC or any of its Subsidiaries or any of their respective property
(including, without limitation, the Iridium Business), which has resulted in, or
could reasonably be expected to result in, a Material Adverse Effect.
SECTION 2.07. Investment and Holding Company Status. Iridium LLC
is not (a) an "investment company" or a company "controlled" by a company
registered as an "investment company", as such terms are defined in the
Investment Company Act of 1940 or (b) a "holding company", or an "affiliate" of
a company registered as a "holding company" or a "subsidiary company" of a
company registered as a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935.
SECTION 2.08. Taxes. Iridium LLC has filed or caused to be filed
all tax returns that are required to be filed, and has paid all Taxes shown to
be due and payable on said returns or on any assessments made against Iridium
LLC or any of its property (other than Taxes (i) the payment of which is not yet
due or which are being contested in good faith by appropriate proceedings and
for which such Person has set aside on its books adequate reserves or (ii) the
failure of which to pay could not reasonably be expected to result in a Material
Adverse Effect),
Parent Security Agreement
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and no tax Liens have been filed (a) with respect to any of the Collateral
(other than Permitted Liens) or (b) that would have a Material Adverse Effect,
and no claims are being asserted with respect to any such Taxes. The charges,
accruals and reserves on the books of Iridium LLC in respect of Taxes and other
governmental charges are, in the opinion of Iridium LLC, adequate.
SECTION 2.09. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 2.10. Capitalization. Iridium LLC has heretofore delivered
to the Lenders a true and complete copy of the Iridium LLC Agreement. The
members of Iridium LLC on the date hereof are those identified in Schedule I.
SECTION 2.11. Collateral.
(a) Iridium LLC has all right, title and interest in, to and
under, and is the record owner of, the Collateral in which it purports to grant
a security interest pursuant to Section 3.01 and no Lien exists or will exist
upon the Collateral at any time (and no right or option to acquire the same
exists in favor of any other Person), except for the pledge and security
interest in favor of the Collateral Agent for the benefit of the Secured Parties
created or provided for herein, which pledge and security interest constitute a
first priority perfected pledge and security interest in and to all of the
Collateral (except for Permitted Liens).
(b) The membership interests of the Company identified in Annex 1
are, and all other membership interests of the Company in which Iridium LLC
shall hereafter grant a security interest pursuant to Section 3.01 will be, duly
authorized, validly existing, fully paid and non-assessable (except as provided
in Section 18-607 of the Delaware LLC Act). Except for any restriction contained
herein, there does not exist any contractual restriction on (i) the sale,
assignment, transfer or disposition by the Collateral Agent of any of the
membership interests of the Company pledged hereunder in connection with the
exercise by the Collateral Agent of its remedies hereunder, (ii) the admission
of any transferee of such membership interests as a member of the Company or
(iii) otherwise on the exercise by the Collateral Agent of any of its remedies
hereunder in respect of such membership interests.
(c) The membership interests of the Company identified in Annex 1
constitute all of the ownership interests of the Company issued and outstanding
on the date hereof (whether or not registered in the name of Iridium LLC) and
Iridium LLC is the owner of all such ownership interests.
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ARTICLE III
PLEDGE AND SECURITY INTEREST
SECTION 3.01. Pledge. As collateral security for the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the Secured Obligations now existing or hereafter arising, Iridium
LLC hereby pledges, assigns, hypothecates and transfers to the Collateral Agent
for the equal and ratable benefit of the Secured Parties, and hereby grants to
the Collateral Agent for the equal and ratable benefit of the Secured Parties a
Lien on and security interest in, all of Iridium LLC's right, title and interest
in, to and under the following, whether now owned by Iridium LLC or hereafter
acquired and whether now existing or hereafter coming into existence and
wherever located (all being collectively referred to herein as the
"Collateral"):
(a) all of its membership interests in the Company together with
the certificate or certificates (if any) evidencing the same and all of its
right, title and interest in, to and under the Company LLC Agreement,
including, without limitation, (i) all rights of Iridium LLC to receive
moneys due but unpaid and to become due thereunder or pursuant thereto,
(ii) all rights of Iridium LLC to participate in the operation or
management of the Company and to take actions or consent to actions in
accordance with the provisions thereof, (iii) all rights of Iridium LLC
pursuant thereto to property of the Company, (iv) all rights of Iridium LLC
to receive proceeds of any insurance, bond, indemnity, warranty or guaranty
with respect thereto, (v) all claims of Iridium LLC for damages arising out
of or for breach of or default thereunder and (vi) all rights of Iridium
LLC to terminate, amend, supplement, modify or waive performance under any
of the terms provisions of the Company LLC Agreement, to perform thereunder
and to compel performance and otherwise to exercise all remedies
thereunder;
(b) all shares, interests, securities, moneys or property
representing a dividend upon, or representing a distribution or return of
capital upon or with respect to, such membership interests or resulting
from a split-up, revision, reclassification or other like change thereof or
otherwise received in exchange therefor, and any subscription warrants,
rights or options issued to the holders of, or otherwise in respect of
thereof;
(c) without affecting the obligations of Iridium LLC under any
provision prohibiting such action hereunder, in the event of any
consolidation or merger of the Company in which the Company is not the
surviving entity, all ownership interests of whatever class owned by
Iridium LLC of the successor entity formed by or resulting from such
consolidation or merger (such membership interests, together with all
shares, interests, securities, moneys or property as may from time to time
be pledged hereunder pursuant to clause (a) or (b) above and this clause
(c) being herein, and the proceeds of and to any such property and, to the
extent related to any such property or such proceeds, all books,
correspondence, credit files, records, invoices and other papers,
collectively called the "Member Collateral");
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(d) all rights of Iridium LLC (including rights delegated to its
directors or officers) in respect of the Reserve Capital Call Obligations,
including, without limitation, all rights to compel performance of the
Reserve Capital Call Obligations, to terminate, amend, supplement, modify
or waive performance thereof and otherwise to exercise rights and remedies
in respect thereof (but not including any indemnity rights which any of the
directors or officers of Iridium LLC may have relating to the Reserve
Capital Call Obligations);
(e) all rights of Iridium LLC in any insurance policies required
to be maintained under Section 8.01 of the Credit Agreement, to the extent
that Iridium LLC is a named insured thereunder; and
(f) all proceeds, products, offspring, rents, profits, royalties,
revenues, issues, income, benefits, accessions, additions, substitutions
and replacements of and to any and all of the property of Iridium LLC
described in the preceding clauses of this Section and, to the extent
related to any such property, all books, correspondence, credit files,
records, invoices and other papers.
SECTION 3.02. Member Remains Liable. Anything herein to the
contrary notwithstanding, Iridium LLC shall remain liable under the Company LLC
Agreement to the extent set forth therein to perform all of its duties and
obligations thereunder to the same extent as if this Agreement had not been
executed. The exercise by the Collateral Agent of any of the rights hereunder
shall not release Iridium LLC from any of its duties or obligations under the
Company LLC Agreement. The Collateral Agent shall not have any obligation or
liability under the Company LLC Agreement by reason of this Agreement, nor shall
the Collateral Agent be obligated to perform any of the obligations or duties of
Iridium LLC thereunder or to take any action to collect or enforce any claim for
payment assigned hereunder. In the event that the Collateral Agent on behalf of
the Secured Parties or its designee(s) succeeds to Iridium LLC's interest in, to
and under the membership interests of the Company whether by foreclosure or
otherwise, the Collateral Agent on behalf of the Secured Parties or its
designee(s) shall assume liability for all of the obligations of Iridium LLC as
a member under the Company LLC Agreement, provided that such liability shall not
include any liability for claims against Iridium LLC arising from Iridium LLC's
failure to perform during the period prior to the Collateral Agent's or such
designee(s)' succession to Iridium LLC's interest in, to and under such
membership interests.
ARTICLE IV
COVENANTS
Iridium LLC agrees that, until the payment and satisfaction in
full of the Secured Obligations and the expiration or termination of the
Commitments of the Lenders under the Credit Agreement:
SECTION 4.01. Financial Statements and Other Information. Iridium
LLC will furnish to the Administrative Agent and each Lender (but, in the case
of clauses (a) through (d)
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below, only if at such time Iridium LLC shall be required to prepare financial
statements of the type referred to below for filing with the SEC):
(a) within 120 days after the end of each fiscal year of Iridium
LLC, the audited consolidated balance sheet and related statements of
operations, members' equity and cash flows of Iridium LLC and its
Subsidiaries as of the end of and for such year, setting forth in each case
in comparative form the figures for the previous fiscal year, all reported
on by KPMG Peat Marwick LLP or other independent public accountants of
recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception as to
the scope of such audit) to the effect that such consolidated financial
statements present fairly in all material respects the financial condition
and results of operations of Iridium LLC and its Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;
(b) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year of Iridium LLC, the consolidated balance sheet
and related statements of operations, members' equity and cash flows of
Iridium LLC and its Subsidiaries as of the end of and for such fiscal
quarter and the then elapsed portion of the fiscal year, setting forth in
each case in comparative form the figures for (or, in the case of the
balance sheet, as of the end of) the corresponding period or periods of the
previous fiscal year, all certified by a Responsible Officer as presenting
fairly in all material respects the financial condition and results of
operations of Iridium LLC and its Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) of this Section, a certificate of a Responsible Officer
stating whether any change in GAAP or in the application thereof has
occurred since the date of the most recent audited financial statements
delivered to the Administrative Agent pursuant hereto and, if any such
change has occurred, specifying the effect of such change on the financial
statements accompanying such certificate;
(d) promptly upon receipt, copies of all formal accountants'
letters received by Iridium LLC's management in respect of Iridium LLC
(other than any such letters relating solely to Unrelated Subsidiaries);
(e) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other materials filed
by IWCL or Iridium LLC with the SEC or any national securities exchange or
distributed by Iridium LLC to its members generally; and
(f) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of Iridium LLC (but excluding any information not included under
Section 4.06), as the Administrative Agent or any Lender (through the
Administrative Agent) may reasonably request.
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SECTION 4.02. Notices of Material Events. Iridium LLC will
furnish, or will cause to be furnished, to the Administrative Agent and each
Lender prompt written notice of:
(a) Iridium LLC becoming aware of the occurrence of any Default
relating to Iridium LLC;
(b) the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Government Authority against or affecting
Iridium LLC that, if adversely determined, could reasonably be expected to
result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in liability of Iridium LLC and its Subsidiaries in an aggregate
amount exceeding $2,000,000; and
(d) any other circumstance, act or condition relating to Iridium
LLC which could reasonably be expected to result in a Material Adverse
Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Responsible Officer setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect
thereto.
SECTION 4.03. Maintenance of Existence. Iridium LLC will preserve
and maintain (a) its legal existence and (b) all of its licenses, Government
Approvals, rights, privileges, franchises and property (if any) which are
material to the Iridium Business and the due performance of all of its
obligations and the exercise of all of its rights under the Transaction
Documents to which it is party, provided that nothing in this Section shall be
construed to prohibit any transaction permitted under this Article IV.
SECTION 4.04. Taxes. Iridium LLC will (a) pay and discharge, or
effectively provide for, all Taxes that are imposed on Iridium LLC or on its
income or profits or on any of its property prior to the date on which penalties
for the failure to pay or discharge such Taxes attach thereto, other than Taxes
the failure of which to pay could not reasonably be expected to have a Material
Adverse Effect, provided that Iridium LLC shall have the right to contest in
good faith by appropriate proceedings the validity or amount of any such Tax,
and (b) promptly pay any valid, final judgment enforcing any such Tax and cause
the same to be satisfied of record.
SECTION 4.05. Compliance with Laws; Government Approvals. Iridium
LLC will comply in all respects with all applicable Government Rules applicable
to it or its property and all Government Approvals now or hereafter held by it,
unless the failure to so comply could not reasonably be expected to have a
Material Adverse Effect.
SECTION 4.06. Inspection Rights. Subject to the same
confidentiality requirements set forth in Section 11.12 of the Credit Agreement
that are applicable to the Company, Iridium LLC will permit representatives of
any of the Global Lead Arrangers, the Agents or the Lenders, upon reasonable
prior notice to Iridium LLC unless a Default shall have occurred and is
continuing, to visit and inspect its property, to examine, copy or make excerpts
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from its books, records and documents and to discuss its affairs, finances and
accounts with its principal officers, engineers and independent accountants to
the extent such property, books, records, documents, affairs, finances and
accounts relate to the business or operation of Company, the Iridium Business or
the Collateral hereunder, all at such reasonable times during normal business
hours and at such intervals as such representatives may reasonably request.
Iridium LLC hereby authorizes each of its principal officers, engineers and
independent accountants to discuss Iridium LLC's affairs, finances and accounts
as contemplated by this Section.
SECTION 4.07. Indebtedness. Iridium LLC will not create, incur,
assume or permit to exist any Indebtedness of Iridium LLC, except: (a)
Indebtedness (including Capital Lease Obligations) incurred in the ordinary
course of business of Iridium LLC in the performance of its duties under the
Management Services Agreement or otherwise in carrying out its activities in
connection with the Iridium Business; (b) other Indebtedness of Iridium LLC,
provided that (i) the proceeds of such Indebtedness (or, in the case of any
Indebtedness of an Unrelated Subsidiary that is Guaranteed by Iridium LLC, such
Indebtedness) shall be used in the acquisition or business (including the
financing thereof) of an Unrelated Subsidiary, (ii) such Indebtedness shall not
have a maturity earlier than one year after the Maturity Date or provide any
amortization or redemption of principal prior to such date, (iii) such
Indebtedness shall not place any limitations on the activities of the Company
and its Subsidiaries or the activities of Iridium LLC in connection with the
Iridium Business, (iv) such Indebtedness may contain such other terms and
conditions (including, without limitation, covenants and events of default, but
excluding terms as to pricing and terms that are applicable solely after the
Maturity Date) applicable to Iridium LLC that are not more restrictive than the
terms set forth in the Credit Agreement (assuming such terms were applicable to
Iridium LLC) and (v) such Indebtedness may not be secured by a Lien on any
property of Iridium LLC other than the equity interests of any Unrelated
Subsidiary; and (c) other Indebtedness not exceeding $50,000,000 in the
aggregate principal amount outstanding at any one time; provided that this
Section shall not (A) be construed to restrict the ability of any Unrelated
Subsidiary to incur or have outstanding any Indebtedness and (B) apply to any
Indebtedness incurred by any Unrelated Subsidiary that is secured by a pledge of
the equity interests of such Unrelated Subsidiary (and no other property of
Iridium LLC) and is not Guaranteed by Iridium LLC.
SECTION 4.08. Liens. Iridium LLC will not create, incur, assume or
suffer to exist any Lien on any property, except (a) the Liens created pursuant
to this Agreement, (b) Liens on equity interests of Unrelated Subsidiaries and
(c) any other Lien that could not reasonably be expected to have a Material
Adverse Effect.
SECTION 4.09. Membership Interests. Iridium LLC will not consent
to, or take any other action to effect, (a) the creation of any other membership
or other ownership interest in the Company (other than the membership interests
in the Company outstanding as of the date hereof) or (b) (except for any
restriction contained herein) the creation of any contractual restriction on (i)
the sale, assignment, transfer or the disposition by the Collateral Agent of any
of the membership interests of the Company pledged hereunder in connection with
the exercise by the Collateral Agent of its remedies hereunder, (ii) the
admission of any transferee of such
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membership interests as a member of the Company or (iii) otherwise on the
exercise by the Collateral Agent of any of its remedies hereunder in respect of
such membership interests.
SECTION 4.10. Mergers, Consolidations, Etc. Iridium LLC will not
enter into any transaction of merger, consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation of
dissolution), or convey, transfer or lease its property substantially as an
entirety to any person.
SECTION 4.11. Investments. Iridium LLC will not make or permit to
remain outstanding any Investments other than (a) the investment in the
membership interests of the Company, (b) Permitted Investments and (c) equity
investments in Unrelated Subsidiaries or other Persons engaged in any Related
Business that are from the proceeds of the issuance of equity interests in IWCL,
Iridium LLC or any Unrelated Subsidiary and/or Indebtedness permitted under
Section 4.07.
SECTION 4.12. Transactions with Affiliates. Iridium LLC will not
sell, lease or otherwise transfer any property or assets to, or purchase, lease
or otherwise acquire any property or assets from, or otherwise engage in any
other transactions with, any of its Affiliates, except (a) transactions on terms
which, in the opinion of Iridium LLC, are not less favorable to Iridium LLC than
could be obtained on an arm's-length basis from unrelated third parties and (b)
any transaction which could not reasonably be expected to have a Material
Adverse Effect.
SECTION 4.13. Nature of Business. Iridium LLC will not engage in
any business, activities or transactions other than in connection with the
Iridium Business or any Related Business. Without limiting the foregoing,
Iridium LLC will take from time to time all necessary action to ensure that the
Iridium Services are provided in all substantial respects by or through the
Company and its Subsidiaries (including pursuant to contracts or agreements
between the Company or any of its Subsidiaries and any other person), and that
at all times substantially all of the assets which are necessary for the
provision of the Iridium Services that are owned or held by Iridium LLC and its
Subsidiaries are owned or held by the Company and its Subsidiaries; provided,
however, that nothing in this Section shall prevent Iridium LLC or any Unrelated
Subsidiary from engaging in, or owning assets related to, any Related Business
described in the last sentence of the definition thereof.
SECTION 4.14. Company LLC Agreement. Iridium LLC will not (a)
cancel or terminate the Company LLC Agreement or consent to or accept any
cancellation or termination thereof, (b) amend, supplement or otherwise modify
the Company LLC Agreement in a manner that would be materially adverse to the
interests of the Lenders under the Credit Documents or materially adversely
affect the rights or remedies of the Collateral Agent hereunder or the
Collateral or (c) petition, request or take any other legal or administrative
action that seeks, or may reasonably be expected, to rescind, terminate, amend,
modify or suspend in any way prohibited under clause (b) above the Company LLC
Agreement, without the prior consent of the Administrative Agent (acting with
the approval of the Required Lenders). Iridium LLC shall provide the
Administrative Agent with prior written notice of each proposed modification,
supplement or waiver in respect of thereof not less than 10 Business Days prior
to the proposed effective date thereof (and the Administrative Agent shall
promptly provide copies thereof to
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each Lender). Promptly following the effectiveness of each such modification,
supplement or waiver, Iridium LLC shall provide the Administrative Agent with a
copy thereof as executed and delivered by the parties thereto (and the
Administrative Agent shall promptly provide a copy thereof to each Lender).
SECTION 4.15. Iridium LLC Agreement.
(a) Iridium LLC will not (i) take any action, or permit any action
to be taken, to effect (x) the cancellation or termination of the Iridium LLC
Agreement or (y) any amendment, supplement or otherwise modification of the
Iridium LLC Agreement in a manner that would be materially adverse to the
interests of the Lenders under the Credit Documents or materially adversely
affect the rights or remedies of the Collateral Agent hereunder or the
Collateral or (ii) petition, request or take any other legal or administrative
action that seeks, or may reasonably be expected, to rescind, terminate, amend,
modify or suspend in any way prohibited under clause (i) above the Iridium LLC
Agreement, without the prior consent of the Administrative Agent (acting with
the approval of the Required Lenders). Iridium LLC shall provide the
Administrative Agent with prior written notice of each proposed modification,
supplement or waiver in respect of thereof not less than 10 Business Days prior
to the proposed effective date thereof (and the Administrative Agent shall
promptly provide copies thereof to each Lender). Promptly following the
effectiveness of each such modification, supplement or waiver, Iridium LLC shall
provide the Administrative Agent with a copy thereof as executed and delivered
by the parties thereto (and the Administrative Agent shall promptly provide a
copy thereof to each Lender).
(b) Iridium LLC will not approve, consent to or otherwise permit,
or take any other action to effect, the transfer of any membership interests of
Iridium LLC if such transfer would violate Section 5.01 of the Motorola Consent.
(c) Neither Iridium LLC nor any of its directors or officers will
exercise any rights under the Iridium LLC Agreement with respect to the Reserve
Capital Call Obligations unless directed so to do by the Administrative Agent
(acting upon the instructions of the Required Lenders). Upon payment by any
Iridium LLC Member of all or any part of the Reserve Capital Call Obligations
payable by such member to the Collateral Agent pursuant to Section 4.02 of the
Iridium LLC Agreement, such payment will constitute a capital contribution by
such member to Iridium LLC and Iridium LLC will be deemed to have made a capital
contribution in the same amount in the Company.
SECTION 4.16. Costs. If Iridium LLC shall, after the date hereof,
receive proceeds of any Iridium LLC Equity Issuance or any IWCL Equity Issuance,
in any case where the proceeds thereof are intended to be used to pay for or
reimburse Costs, Iridium LLC will make a capital contribution in the Company in
the amount of such net proceeds promptly following such issuance and receipt.
SECTION 4.17. Restrictive Agreements. Iridium LLC will not enter
into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (a) the ability of the
Company or any of its Subsidiaries to create, incur or permit
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to exist any Lien upon any of its property or assets or to sell, transfer or
otherwise dispose of its assets, (b) the ability of any such Subsidiary to (i)
pay dividends or other distributions with respect to any shares of its equity
interests, (ii) make or repay loans or advances to the Company or any other
Subsidiary of the Company or (iii) Guarantee Indebtedness of the Company or any
such other Subsidiary under any of the Credit Documents or (c) the ability of
the Company or any such Subsidiary to enter into amendments, modifications,
supplements or waivers of any of the Credit Documents or Principal Project
Documents; provided that (i) the foregoing shall not apply to restrictions and
conditions imposed by any applicable Government Rule or by any Credit Document,
(ii) the foregoing shall not apply to (A) restrictions and conditions existing
on the date hereof in the Motorola Guaranteed Credit Agreement, the Senior Note
Indentures, the MOU Agreements or otherwise identified on Schedule IX to the
Credit Agreement (but shall apply to any amendment or modification thereof
expanding the scope of any such restriction or condition) or (B) any comparable
restrictions and conditions (not more restrictive than those referred to in
clause (A) above) contained in any agreement or instrument relating to
Indebtedness permitted under Section 7.01 of the Credit Agreement, (iii) the
foregoing shall not apply to customary restrictions and conditions contained in
agreements relating to the sale of a Subsidiary pending such sale, provided that
such restrictions and conditions apply only to the Subsidiary that is to be sold
and such sale is permitted hereunder, (iv) clause (a) of the foregoing shall not
apply to restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness and (v) clause
(a) of the foregoing shall not apply to customary provisions in leases
restricting the assignment thereof.
ARTICLE V
REMEDIES
In furtherance of the grant of the pledge and security interest
pursuant to Section 3.01, Iridium LLC hereby agrees with the Secured Parties as
follows:
SECTION 5.01. Delivery and Other Perfection. Iridium LLC shall:
(a) if any of the shares, interests, securities, moneys or
property required to be pledged by Iridium LLC under clauses (a), (b) and
(c) of Section 3.01 are received by Iridium LLC, forthwith either (i)
transfer and deliver to the Collateral Agent such shares or securities so
received by Iridium LLC (together with the certificates for any such shares
and securities duly endorsed in blank or accompanied by undated stock
powers duly executed in blank), all of which thereafter shall be held by
the Collateral Agent, pursuant to the terms of this Agreement, as part of
the Collateral, (ii) with respect to any Member Collateral that is not
evidenced by a certificate, execute and deliver written instructions to the
issuer thereof to register the Lien created hereunder in such Member
Collateral in the registration books maintained by such issuer for such
purpose and cause Iridium LLC to execute and deliver to the Collateral
Agent a written confirmation to the effect that the Lien created hereunder
in such Member Collateral has been duly registered in such registration
books, all in form and substance satisfactory to the Collateral Agent or
(iii) take such other action as the Collateral Agent shall deem necessary
or appropriate
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to duly perfect the Lien created hereunder in such shares, interests,
securities, moneys or property in said clauses (a), (b) and (c);
(b) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that may
be necessary or desirable (in the judgment of the Collateral Agent) to
create, preserve, perfect or validate the security interest granted
pursuant hereto or to enable the Collateral Agent to exercise and enforce
its rights hereunder with respect to such pledge and security interest,
including, without limitation, causing any or all of the Collateral which
is represented by a certificate to be transferred of record into the name
of the Collateral Agent or its nominee (and the Collateral Agent agrees
that if any Collateral is transferred into its name or the name of its
nominee, the Collateral Agent will thereafter promptly give to Iridium LLC
copies of any notices and communications received by it with respect to the
Collateral pledged by Iridium LLC hereunder);
(c) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise ▇▇▇▇ such books and records in such
manner as the Collateral Agent may reasonably require in order to reflect
the security interests granted by this Agreement; and
(d) permit representatives of the Collateral Agent, upon
reasonable notice, at any time during normal business hours to inspect and
make abstracts from its books and records pertaining to the Collateral, all
in such manner as the Collateral Agent may require.
SECTION 5.02. Other Financing Statements and Liens. Without the
prior written consent of the Collateral Agent, Iridium LLC shall not file or
suffer to be on file, or authorize or permit to be filed or to be on file, in
any jurisdiction, any financing statement or like instrument with respect to the
Collateral in which the Collateral Agent is not named as the sole secured party
for the benefit of the Secured Parties.
SECTION 5.03. Preservation of Rights. The Collateral Agent shall
not be required to take steps necessary to preserve any rights against prior
parties to any of the Collateral.
SECTION 5.04. Collateral.
(a) Iridium LLC will cause to be pledged hereunder at all times
100% of the aggregate ownership interests of the Company then outstanding.
(b) So long as no Event of Default shall have occurred and be
continuing, Iridium LLC shall have the right to exercise all voting, consensual
and other powers of ownership pertaining to the Member Collateral, provided that
Iridium LLC agrees that it will not vote the Collateral in any manner that is
inconsistent with the terms of this Agreement, the Credit Agreement or any other
instrument or agreement referred to herein or therein; and the Collateral Agent
shall execute and deliver to Iridium LLC or cause to be executed and delivered
to Iridium LLC all such proxies, powers of attorney, dividend and other orders,
and all such instruments,
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without recourse, as Iridium LLC may reasonably request for the purpose of
enabling Iridium LLC to exercise the rights and powers that they are entitled to
exercise pursuant to this paragraph (b).
(c) Except as permitted under, and subject to any conditions set
forth in, Section 7.07 of the Credit Agreement, no distributions, dividends or
other payments shall be paid by the Company to Iridium LLC in its capacity as a
member of the Company, and Iridium LLC shall not be entitled to receive and
retain any such distribution, dividends or other payments, in respect of the
Collateral; provided that nothing herein shall be construed to limit the payment
by the Company to Iridium LLC of the Iridium Management Expenses under, and as
defined in, the Management Services Agreement. In the event that,
notwithstanding the foregoing, Iridium LLC shall receive any such distribution,
dividend or other payment, Iridium LLC shall hold the same in trust for the
Collateral Agent and the other Secured Parties, segregated from other funds of
Iridium LLC and forthwith turn over the same to the Collateral Agent in the
exact form received by Iridium LLC for deposit into the appropriate Account
pursuant to the Depositary Agreement.
(d) Without limiting any other rights of the Collateral Agent under
this Agreement (but subject to the second paragraph of Section 5.05), upon and
during the continuance of any Event of Default, the Collateral Agent may (but
shall not be obligated to) make a demand for payment in respect of the Reserve
Capital Call Obligations in accordance with Section 4.02 of the Iridium LLC
Agreement, without notice to or consent from or any other action required to be
taken by Iridium LLC.
SECTION 5.05. Events of Default, Etc. During the period during
which an Event of Default shall have occurred and be continuing:
(a) the Collateral Agent shall have all of the rights and remedies
with respect to the Collateral of a secured party under the Uniform
Commercial Code (whether or not said Code is in effect in the jurisdiction
where the rights and remedies are asserted) and such additional rights and
remedies to which a secured party is entitled under the laws in effect in
any jurisdiction where any rights and remedies hereunder may be asserted,
including, without limitation, the right, to the maximum extent permitted
by law, to exercise all voting, consensual and other powers of ownership
pertaining to the Collateral as if the Collateral Agent were the sole and
absolute owner thereof (and Iridium LLC agrees to take all such action as
may be reasonably necessary to give effect to such right);
(b) the Collateral Agent in its discretion may, in its name or in
the name of Iridium LLC or otherwise, demand, ▇▇▇ for, collect or receive
any money or property at any time payable or receivable on account of or in
exchange for any of the Collateral, but shall be under no obligation to do
so; and
(c) the Collateral Agent may, upon 30 days' prior written notice
to Iridium LLC of the time and place, with respect to the Collateral or any
part thereof that shall then be or shall thereafter come into the
possession, custody or control of the Secured Parties or any of their
respective agents, sell, lease, assign or otherwise dispose of all or any
part of the Collateral, at such place or places as the Collateral Agent
deems best, and for cash or
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for credit or for future delivery, at public or private sale, without
demand of performance or notice of intention to effect any such disposition
or of the time or place thereof (except such notice as is required above or
by applicable statute and cannot be waived), and any Secured Party or
anyone else may be the purchaser, lessee, assignee or recipient of any or
all of the Collateral so disposed of at any public sale (or, to the extent
permitted by law, at any private sale) and thereafter hold the same
absolutely, free from any claim or right of whatsoever kind, including any
right or equity of redemption (statutory or otherwise), of Iridium LLC, any
such demand, notice and right or equity being hereby expressly waived and
released. The Collateral Agent may, without notice or publication, adjourn
any public or private sale or cause the same to be adjourned from time to
time by announcement at the time and place fixed for the sale, and such
sale may be made at any time or place to which the sale may be so
adjourned.
Notwithstanding anything herein or in any other Security
Document to the contrary, neither the Collateral Agent nor any of the other
Secured Parties shall sell, lease, assign or otherwise dispose, or cause the
sale, lease, assignment or other disposition, of all or any part of the
Collateral (other than the rights of Iridium LLC in respect of the Reserve
Capital Call Obligations) pursuant to this Agreement unless not less than 10
days prior thereto the Collateral Agent shall have made a demand (or caused a
demand to be made) in respect of the Reserve Capital Call Obligations in
accordance with Section 4.02 of the Iridium LLC Agreement, provided that (i)
nothing herein shall be construed to limit the rights of the Collateral Agent to
exercise any other right or remedies hereunder prior to any such sale, lease,
assignment or other disposition or from and after any event affecting any Credit
Party or Iridium LLC described in clause (i) or (j) of Section 9.01 of the
Credit Agreement and (ii) the requirement of this paragraph shall not apply if
the aggregate outstanding amount in respect of the Loans (net of any cash
balances in the Accounts) shall exceed the aggregate amount of the Reserve
Capital Call Obligations.
The proceeds of each collection, sale or other disposition under
this Section shall be applied in accordance with Section 5.08.
Iridium LLC recognizes that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Collateral Agent may be compelled, with respect to any sale
of all or any part of the Collateral, to limit purchasers to those who will
agree, among other things, to acquire the Collateral for their own account, for
investment and not with a view to the distribution or resale thereof. Iridium
LLC acknowledges that any such private sales may be at prices and on terms less
favorable to the Collateral Agent than those obtainable through a public sale
without such restrictions, and, notwithstanding such circumstances, agrees that
any such private sale shall be deemed to have been made in a commercially
reasonable manner and that the Collateral Agent shall have no obligation to
engage in public sales and no obligation to delay the sale of any Collateral for
the period of time necessary to permit Iridium LLC or the issuer of such
Collateral to register it for public sale.
SECTION 5.06. Removals, Etc. Without at least 30 days' prior
written notice to the Collateral Agent, Iridium LLC shall not (i) maintain any
of its books and records with respect to the Collateral at any office or
maintain its principal place of business at any place other than at
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the address indicated beneath its signature hereto or (ii) change its corporate
name, or the name under which it does business, from the name shown on the
signature pages hereto.
SECTION 5.07. Private Sale. No Secured Party shall incur any
liability as a result of the sale of the Collateral, or any part thereof, at any
private sale pursuant to Section 5.05 conducted in a commercially reasonable
manner. Iridium LLC hereby waives any claims against the Secured Parties arising
by reason of the fact that the price at which the Collateral may have been sold
at such a private sale was less than the price that might have been obtained at
a public sale or was less than the aggregate amount of the Secured Obligations,
even if the Collateral Agent accepts the first offer received and does not offer
Collateral to more than one offeree.
SECTION 5.08. Application of Proceeds. Except as otherwise herein
expressly provided, the proceeds of any collection, sale or other realization of
all or any part of the Collateral pursuant hereto, and any other cash at the
time held by the Collateral Agent under this Agreement, shall be applied by the
Collateral Agent:
First, to the payment of the costs and expenses of such
collection, sale or other realization, including reasonable out-of-pocket
costs and expenses of the Collateral Agent and the reasonable fees and
expenses of its agents and counsel, and all reasonable expenses incurred
and advances made by the Collateral Agent in connection therewith;
Next, to the payment in full of the Secured Obligations, in each
case equally and ratably in accordance with the respective amounts thereof
then due and owing or as the Lenders holding the same may otherwise agree;
and
Finally, to the payment to Iridium LLC, or its successors or
assigns, or as a court of competent jurisdiction may direct, of any surplus
then remaining.
As used in this Article V, "proceeds" of Collateral shall mean
cash, securities and other property realized in respect of, and distributions in
kind of, the Collateral, including any thereof received under any
reorganization, liquidation or adjustment of debt of Iridium LLC or any issuer
of or obligor on any of the Collateral.
SECTION 5.09. Attorney-in-Fact. Without limiting any rights or
powers granted by this Agreement to the Collateral Agent while no Event of
Default has occurred and is continuing, upon the occurrence and during the
continuance of any Event of Default the Collateral Agent is hereby appointed the
attorney-in-fact of Iridium LLC for the purpose of carrying out the provisions
hereof and taking any action and executing any instruments that the Collateral
Agent may reasonably deem necessary or advisable to accomplish the purposes
hereof, which appointment as attorney-in-fact is irrevocable and coupled with an
interest. Without limiting the generality of the foregoing, so long as the
Collateral Agent shall be entitled under this Article to make collections in
respect of the Collateral, the Collateral Agent shall have the right and power
to receive, endorse and collect all checks made payable to the order of Iridium
LLC representing any dividend, payment or other distribution in respect of the
Collateral or any part thereof and to give full discharge for the same.
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SECTION 5.10. Perfection. Prior to or concurrently with the
execution and delivery of this Agreement, Iridium LLC shall take such action,
including without limitation filing UCC financing statements, establishing
control arrangements (within the meaning of Article 8 of the UCC) and delivering
to the Collateral Agent any certificates representing the Collateral
(accompanied by undated stock or transfer powers duly executed in blank) as the
Collateral Agent may reasonably request to perfect the security interests
granted pursuant to Section 3.01.
SECTION 5.11. Termination. When all Secured Obligations shall have
been paid in full and the Commitments of the Lenders under the Credit Agreement
shall have expired or been terminated, this Agreement shall terminate and all
rights to the Collateral shall revert to Iridium LLC, and the Collateral Agent
shall forthwith cause to be assigned, transferred and delivered, against receipt
but without any recourse, warranty or representation whatsoever, any remaining
Collateral and money received in respect thereof, to or on the order of Iridium
LLC.
SECTION 5.12. Further Assurances. Iridium LLC agrees that, from
time to time upon the written request of the Collateral Agent, Iridium LLC will
execute and deliver such further documents and do such other acts and things as
the Collateral Agent may reasonably request in order fully to effect the
purposes of this Agreement.
ARTICLE VI
CONSENT AND AGREEMENT
Iridium LLC hereby acknowledges and agrees:
SECTION 6.01. Iridium LLC hereby acknowledges notice and receipt
of the Security Agreement and consents to the assignment by the Company of all
its rights in and under the Management Services Agreement pursuant to the
Security Agreement.
SECTION 6.02. In connection with any exercise by the Collateral
Agent of any of its remedies under the Security Agreement, the Collateral Agent
shall be entitled to exercise any and all rights of the Company under the
Management Services Agreement in accordance with its terms, and Iridium LLC
shall comply in all respects with such exercise. Without limiting the foregoing,
in connection with the exercise by the Collateral Agent of such remedies, the
Collateral Agent shall have the full right and power to enforce directly against
Iridium LLC all obligations of Iridium LLC owing to the Company under the
Management Services Agreement and otherwise to exercise all remedies of the
Company thereunder and to make all demands and give all notices and make all
requests required or permitted to be made by the Company under the Management
Services Agreement. The Collateral Agent shall have the right, but not the
obligation, to cure all defaults of the Company and to pay all sums owing by the
Company under the Management Services Agreement in accordance with this Article.
SECTION 6.03. Iridium LLC will not, without the prior written
consent of the Collateral Agent, (i) cancel or terminate, or suspend performance
under, or exercise any right to consent to or accept any cancellation,
termination or suspension of, the Management Services
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Agreement, unless prior thereto Iridium LLC shall have delivered to the
Collateral Agent written notice stating that it intends to take such action on a
date not less than 90 days after the date of such notice, specifying the nature
of the default or other event under the Management Services Agreement entitling
Iridium LLC to take such action (and, in the case of a payment default by the
Company, specifying the amount thereof) and permitting the Collateral Agent to
cure such payment default by making a payment equal to the amount in default or
by performing or causing to be performed any other obligation in default, (ii)
transfer, sell, assign, delegate or otherwise dispose of any part of its
interests in the Management Services Agreement, or (iii) petition, request or
take any other legal or administrative action which seeks, or may reasonably be
expected, to rescind, terminate or suspend or amend or modify the Management
Services Agreement or any part thereof in any manner prohibited by clause (i) or
(ii) above. In furtherance of clause (i) of the immediately preceding sentence,
Iridium LLC agrees that, notwithstanding anything contained in the Management
Services Agreement to the contrary, upon the occurrence of a default by the
Company under such Management Services Agreement entitling Iridium LLC to cancel
or terminate such Management Services Agreement or to suspend performance
thereunder, Iridium LLC will not take any action to cancel or terminate, or
suspend performance under, such Management Services Agreement if, within a
90-day period after the date on which the Collateral Agent shall have received
notice of such default from Iridium LLC, the Collateral Agent commences steps to
cure such default and/or otherwise to institute enforcement proceedings to
acquire the Company's interest in the Management Services Agreement or the
Iridium Business and thereafter the Collateral Agent diligently pursues such
steps or proceedings and all payment defaults of the Company under the
Management Services Agreement have been cured within such 90-day period.
Effective upon any transfer of the Company's interest in the Management Services
Agreement to any other Person, Iridium LLC will grant the relevant transferee a
reasonable period of time to cure such default (but, in no event with respect to
any payment default, exceeding a maximum of 90 days after receipt of notice of
such payment default by the Collateral Agent, as contemplated above). Except as
provided in Section 6.05, no curing or attempt to cure any of the Company's
defaults under the Management Services Agreement shall be construed as an
assumption by the Collateral Agent or any other Secured Party of any covenants,
agreements or obligations of the Company under the Management Services Agreement
and neither the Collateral Agent nor any other Secured Party shall have any
obligation to Iridium LLC for the performance of any obligation under the
Management Services Agreement. In connection with any cure pursuant to this
Section of the Company's default(s) under the Management Services Agreement or
any assumption by any Person of the Company's liabilities thereunder, only those
obligations and liabilities arising expressly under the Management Services
Agreement shall be required to be cured or assumed, as the case may be.
Notwithstanding anything in this Agreement to the contrary, no provision of this
Agreement shall be intended to restrict in any way any merger or consolidation
to which Iridium LLC is a party or the sale of all or substantially all of the
assets of Iridium LLC and its Subsidiaries, provided that, in connection with
any such transaction, if Iridium LLC is not the surviving entity of such
transaction, the surviving entity or purchaser, as the case may be, expressly
assumes in writing the obligations of Iridium LLC under the Management Services
Agreement. Notwithstanding anything herein to the contrary, the restrictions
under this Article shall not apply to any of the arrangements between Iridium
LLC and IWCL as set forth in the Management Services Agreement.
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SECTION 6.04. Iridium LLC shall deliver to the Administrative
Agent at the address provided for in Section 11.01 of the Credit Agreement, or
at such other address as the Administrative Agent may designate in writing from
time to time to Iridium LLC, promptly following the delivery thereof to the
Company, a copy of each material notice from Iridium LLC to the Company under
the Management Services Agreement other than periodic demands for payment not
then overdue. Promptly following its receipt thereof, Iridium LLC will deliver
to the Administrative Agent at the address specified above a copy of each
material notice from the Company to Iridium LLC under the Management Services
Agreement.
SECTION 6.05. Iridium LLC agrees that, in connection with the
exercise by the Collateral Agent of its remedies under the Security Agreement
with respect to the Management Services Agreement, Iridium LLC shall recognize
the Collateral Agent as the Company for purposes of the Management Services
Agreement in accordance with this Agreement. In the event that the Collateral
Agent succeeds to the Company's interests under the Management Services
Agreement in accordance with the Security Agreement, the Collateral Agent shall
assume liability for all of the Company's obligations under the Management
Services Agreement, provided, however, that such liability shall not include any
liability for claims of Iridium LLC against the Company arising from the
Company's failure to perform during the period prior to the Collateral Agent's
succession to the Company's interests under the Management Services Agreement
other than the payments obligations of the Company expressly provided for in the
Management Services Agreement. Except as otherwise set forth in the immediately
preceding sentence, none of the Secured Parties shall be liable for the
performance or observance or any of the obligations or duties of the Company
under any of the Management Services Agreement, nor shall the assignment of the
Management Services Agreement by the Company to the Collateral Agent pursuant to
the Security Agreement give rise to any duties or obligations whatsoever on the
part of any of the Secured Parties owing to Iridium LLC. If the Collateral Agent
succeeds to the Company's interests under the Management Services Agreement
pursuant to the Security Agreement, Iridium LLC and the Collateral Agent shall
negotiate in good faith an equitable adjustment to the amounts payable
thereunder to compensate Iridium LLC for any additional costs reasonably
incurred by Iridium LLC following the failure of the Company to perform its
obligations that resulted in the enforcement by the Collateral Agent of its
remedies under the Security Agreement until the date on which the Collateral
Agent shall have assumed the obligations of the Company under the Management
Services Agreement. Notwithstanding the foregoing, Iridium LLC shall not be
relieved of its obligations to perform under the Management Services Agreement
as a result of the parties' failure to agree upon an equitable adjustment to the
amounts payable thereunder.
SECTION 6.06. In the event that (i) the Management Services
Agreement is rejected by a trustee, liquidator, debtor-in-possession or similar
entity or person in any bankruptcy, insolvency or other similar proceeding
involving the Company or (ii) the Management Services Agreement is terminated as
a result of any bankruptcy, insolvency or similar proceeding involving the
Company and, if within 90 days after such rejection, the Collateral Agent shall
so request and shall certify in writing to Iridium LLC that it intends to
perform the obligations of the Company as and to the extent required under the
Management Services Agreement (as if it had not been rejected or terminated, but
otherwise only to the extent such obligations would be undertaken had such
person or entity succeeded to the Company
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thereunder pursuant to Section 6.07, Iridium LLC will execute and deliver to the
Collateral Agent a new agreement amending or replacing the original affected
Management Services Agreement which shall be for the balance of the remaining
term under such affected Management Services Agreement before giving effect to
such rejection or termination and shall contain the same conditions, agreements,
terms, provisions and limitations as such affected Management Services Agreement
(except for any requirements which have been fulfilled by the Company and
Iridium LLC prior to such rejection or termination or which are not required to
be undertaken by such person or entity). If the Collateral Agent and Iridium LLC
enter into such a new agreement in accordance with this Section, Iridium LLC and
the Collateral Agent shall negotiate in good faith an equitable adjustment to
the amounts payable thereunder to compensate Iridium LLC for any additional
costs reasonably incurred by Iridium LLC during the period from and including
the date such bankruptcy, insolvency or similar proceeding was commenced to and
including the date on which the Collateral Agent shall certify in writing that
it intends to perform the obligations of the Company with respect to such new
agreement. Notwithstanding the foregoing provisions, Iridium LLC shall not be
relieved of its obligations to perform under such new agreement as result of the
parties' failure to agree upon such an equitable adjustment. References in this
Agreement to a "Management Services Agreement" shall be deemed also to refer to
the new Management Services Agreement in replacement thereof.
SECTION 6.07. In connection with the exercise by the Collateral
Agent of its remedies under the Security Agreement, the Collateral Agent may
assign its rights and interests and the rights and interests of the Company
under the Management Services Agreement to any other Person, provided that such
Person shall assume all of the obligations of the Company under the Management
Services Agreement(s) and shall have obtained all Government Approvals (if any)
necessary to perform such obligations. Upon such assignment and assumption, the
Collateral Agent shall be relieved of all obligations (if any) under the
Management Services Agreement(s) arising after such assignment and assumption.
SECTION 6.08. It is acknowledged and agreed that the Collateral
Agent may employ agents and attorneys-in-fact in exercising its remedies under
the Security Agreement, and in that connection may designate another entity to
take action on behalf of the Collateral Agent including, but not limited to, the
enforcement of and/or acquisition of the Company's rights in the Management
Services Agreement or otherwise in respect of the Iridium Business. It is
further acknowledged and agreed that in connection with the exercise by the
Collateral Agent of such remedies, the Collateral Agent may cause the Company's
rights in any or all of the Management Services Agreement (and/or other assets
associated with the Iridium Business) to be transferred or assigned to a third
party pursuant to the Security Agreement (a "transferee"). The provisions of
this Article are intended to benefit the Collateral Agent, its agents,
attorneys-in-fact and designees (collectively, the "designees") and each
transferee. Accordingly, unless the context otherwise requires, references to
"Collateral Agent" or "Administrative Agent" in this Article shall be deemed to
include references to designees and transferees thereof permitted pursuant to
the Security Agreement (regardless of whether so expressly provided herein), and
all actions permitted to be taken by the Collateral Agent or the Administrative
Agent, as the case may be, under this Agreement may be taken by any such
designee or transferee, as appropriate.
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ARTICLE VII
MISCELLANEOUS
SECTION 7.01. No Waiver. No failure on the part of the Collateral
Agent or any other Secured Party to exercise, and no course of dealing with
respect to, and no delay in exercising, any right, power or remedy hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise by
the Collateral Agent or any other Secured Party of any right, power or remedy
hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies herein are cumulative and are not
exclusive of any remedies provided by law.
SECTION 7.02. Notices. All notices, requests, consents and demands
hereunder shall be in writing and telecopied or delivered to the intended
recipient at the "Address for Notices" specified beneath its name on the
signature pages hereof or, as to any party, at such other address as shall be
designated by such party in a notice to each other party. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have been
duly given when transmitted by telecopier or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
SECTION 7.03. Expenses. Iridium LLC agrees to reimburse each of
the Lenders and the Collateral Agent for all reasonable costs and expenses of
the Lenders and the Collateral Agent (including, without limitation, the
reasonable fees and expenses of legal counsel) in connection with (a) any Event
of Default and any enforcement or collection proceeding resulting therefrom,
including, without limitation, all manner of participation in or other
involvement with (i) performance by the Collateral Agent of any obligations of
Iridium LLC in respect of the Collateral that Iridium LLC have failed or refused
to perform, (ii) bankruptcy, insolvency, receivership, foreclosure, winding up
or liquidation proceedings, or any actual or attempted sale, or any exchange,
enforcement, collection, compromise or settlement in respect of any of the
Collateral, and for the care of the Collateral and defending or asserting rights
and claims of the Collateral Agent in respect thereof, by litigation or
otherwise, (iii) judicial or regulatory proceedings and (iv) workout,
restructuring or other negotiations or proceedings (whether or not the workout,
restructuring or transaction contemplated thereby is consummated) and (b) the
enforcement of this Section, and all such costs and expenses shall be Secured
Obligations entitled to the benefits of the collateral security provided
pursuant to Section 3.01.
SECTION 7.04. Amendments, Etc. The terms of this Agreement may be
waived, altered or amended only by an instrument in writing duly executed by
Iridium LLC and the Collateral Agent. Any such amendment or waiver shall be
binding upon the Collateral Agent, each other Secured Party and Iridium LLC.
SECTION 7.05. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the respective successors and assigns
of Iridium LLC, the Collateral Agent and each other Secured Party, provided,
however, that Iridium LLC shall not assign or transfer its rights hereunder
without the prior written consent of the Collateral Agent.
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SECTION 7.06. Captions. The caption and section headings used
herein are for convenience of reference only, are not part of this Agreement and
shall not affect the construction of, or be taken into consideration in
interpreting, this Agreement.
SECTION 7.07. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract.
SECTION 7.08. Governing Law; Jurisdiction; Consent to Service of
Process.
(a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) Iridium LLC hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Collateral Agent or
any other Secured Party may otherwise have to bring any action or proceeding
relating to this Agreement against Iridium LLC or its properties in the courts
of any jurisdiction.
(c) Iridium LLC hereby irrevocably appoints CT Corporation (the
"Process Agent") with an office on the date hereof at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its agent to receive on behalf of it and its property service
of copies of the summons and complaint and any other process which may be served
in any such suit, action or proceeding. Such service may be made by mailing or
delivering a copy of such process to Iridium LLC, in care of the Process Agent
at the Process Agent's above address and Iridium LLC hereby irrevocably
authorizes and directs the Process Agent to receive such service on its behalf.
The Administrative Agent and each Lender agree to mail to Iridium LLC at its
address provided under Section 7.02 a copy of any summons, complaint, or other
process mailed or delivered by it to Iridium LLC in care of the Process Agent.
As an alternate method of service, Iridium LLC also irrevocably consents to the
service of any and all process in any such suit, action or proceeding by mailing
of copies of such process to it at its address provided under Section 7.02. All
mailings under this Section shall be by certified mail, return receipt
requested. Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
(d) Iridium LLC hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement
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in any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(e) To the extent that Iridium LLC may be or become entitled, in
any jurisdiction in which judicial proceedings may at any time be commenced with
respect to this Agreement, to claim for itself or its property or revenues any
immunity from suit, court jurisdiction, attachment prior to judgment, attachment
in aid of execution of a judgment, execution of a judgment or from any other
legal process or remedy relating to its obligations under this Agreement and to
the extent that in any such jurisdiction there may be attributed such an
immunity (whether or not claimed), Iridium LLC hereby irrevocably agrees not to
claim and hereby irrevocably waives such immunity to the fullest extent
permitted by the laws of such jurisdiction.
SECTION 7.09. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 7.10. No Third Party Beneficiaries. The agreements of the
parties hereto are solely for the benefit of Iridium LLC, the Collateral Agent
and the other Secured Parties, and no other Person shall have any rights
hereunder.
SECTION 7.11. Agents and Attorneys-in-Fact. The Collateral Agent
may employ agents and attorneys-in-fact in connection herewith and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith.
SECTION 7.12. Severability. Any provision of this Agreement held
to be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
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SECTION 7.13. Security Interest Absolute. The rights and remedies
of the Collateral Agent hereunder, the Liens created hereby and the obligations
of Iridium LLC hereunder are absolute, irrevocable and unconditional,
irrespective of:
(a) the validity or enforceability of any of the Secured
Obligations, any LLC Agreement, any Credit Document or any other agreement
or instrument relating thereto (other than this Agreement);
(b) any amendment to, waiver of, consent to or departure from, or
failure to exercise any right, remedy, power or privileges under or in
respect of, any of the Secured Obligations, any LLC Agreement, any Credit
Document or any other agreement or instrument relating thereto (other than
this Agreement);
(c) the acceleration of the maturity of any of the Secured
Obligations or any other modification of the time of payment thereof;
(d) any substitution, release or exchange of any other security
for or guarantee of any of the Secured Obligations or the failure to
create, preserve, validate, perfect or protect any other Lien granted to,
or purported to be granted to, or in favor of, the Collateral Agent or any
other Secured Party; or
(e) any other event or circumstance whatsoever which might
otherwise constitute a legal or equitable discharge of a surety or a
guarantor, it being the intent of this Section that the obligations of
Iridium LLC hereunder shall be absolute, irrevocable and unconditional
under any and all circumstances.
SECTION 7.14. Subrogation. Iridium LLC shall not exercise, and
hereby irrevocably waives, any claim, right or remedy that it may now have or
may hereafter acquire against the Company arising under or in connection with
this Agreement, including, without limitation, any claim, right or remedy of
subrogation, contribution, reimbursement, exoneration, indemnification or
participation arising under contract, by Government Rule or otherwise in any
claim, right or remedy of the Collateral Agent or any other Secured Party
against the Company or any other Person or any Collateral which the Collateral
Agent or any other Secured Party may now have or may hereafter acquire until
such time as all of the Secured Obligations have been paid in full. If,
notwithstanding the preceding sentence, any amount shall be paid to Iridium LLC
on account of such claim, right or remedy at any time when any of the Secured
Obligations shall not have been paid in full, such amount shall be held by
Iridium LLC in trust for the Collateral Agent and the other Secured Parties,
segregated from other funds of Iridium LLC, and be turned over to the Collateral
Agent in the exact form received by Iridium LLC (duly endorsed by Iridium LLC to
the Collateral Agent, if required), to be applied against the Secured
Obligations, whether matured or unmatured, in accordance with this Agreement.
SECTION 7.15. Reinstatement. This Agreement and the Lien created
hereunder shall automatically be reinstated if and to the extent that for any
reason any payment by or on behalf of the Company in respect of the Secured
Obligations is rescinded or must otherwise be restored by any holder of the
Secured Obligations, whether as a result of any proceedings in
Parent Security Agreement
214
-27-
bankruptcy or reorganization or otherwise, and Iridium LLC shall indemnify the
Collateral Agent and each other Secured Party on demand for all reasonable costs
and expenses (including, without limitation, reasonable fees of counsel)
incurred by the Collateral Agent or such other Secured Party in connection with
such rescission or restoration.
SECTION 7.16. FCC Approval. Notwithstanding any other provision of
this Agreement, from and after the transfer of the FCC License to the Company or
any of its Subsidiaries pursuant to Section 18.H of the Space System Contract,
no action shall be taken hereunder by the Collateral Agent or any other Secured
Party with respect to any of the membership interests of the Company that would
constitute or result in any assignment of the FCC License or any change of
control of the holder of the FCC License, if, under then existing applicable
law, regulations and FCC policies, such assignment or change of control would
require the prior approval of the FCC. Iridium LLC agrees to take, at its
expense, any action that the Collateral Agent may reasonably request in order to
obtain from the FCC such approval as may be necessary (a) to enable the
Collateral Agent to exercise and enjoy the full rights and benefits granted to
the Collateral Agent by this Agreement and (b) for any action or transaction
contemplated by this Agreement for which such approval is or shall be required
by law, and specifically, without limitation, upon request by the Collateral
Agent, to prepare, sign and file with the FCC the assignor's or transferor's
portion of any application or applications for consent to the assignment of any
license or transfer of control necessary or appropriate under the FCC's rules,
regulations and policies, or for approval of any sale of the membership
interests of the Company provided by this Agreement by or on behalf of the
Collateral Agent or any assumption by the Collateral Agent of voting rights
relating thereto effected in accordance with the terms hereof.
Parent Security Agreement
215
-28-
IN WITNESS WHEREOF, the parties hereto have caused this Pledge and
Security Agreement to be duly executed and delivered as of the day and year
first above written.
PLEDGOR
IRIDIUM LLC
By
------------------------
Name:
Title:
Address for Notices:
Iridium LLC
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: General Counsel
Parent Security Agreement
216
COLLATERAL AGENT
THE CHASE MANHATTAN BANK,
as Collateral Agent
By
------------------------
Name:
Title:
Address for Notices:
The Chase Manhattan Bank
Loan and Agency Services Group
1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Winslowe Ogbourne
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: (212) 270-2740/(212) 270-1724
Parent Security Agreement
217
ANNEX 1
Membership Interests
[See Section 2.11(b) and (c)]
Type of Certificate
Membership Number of No(s).
Interests Units (if any)
--------- ----- --------
ILLC Membership 100% 1
Interests in IOLLC
Annex 1 to Parent Security Agreement
218
SCHEDULE I
Iridium LLC Members
INTERESTS
Series M
Convertible Series A Series B Series C
Class 1 Class 2 Class 2 Class 2 Class 2
Name and Business Address Interests Interests Interests Interests Interests
------------------------- --------- --------- --------- --------- ---------
AIG Asian Infrastructure Fund, L.P. 945,898 -- -- -- --
c/o L. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
American International Building
29 Richmond Road
Pembroke, Bermuda HM08
AIG Investment Corporation (Asia) Ltd. 689,194 -- -- -- --
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Times Square
▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇
American International Underwriters Overseas, Ltd. 945,898 -- -- -- --
c/o L. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
American International Building
29 Richmond Road
Pembroke, Bermuda HM08
BCE Mobile -- -- 11,129.8 -- --
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
IAC Sale Sub, Ltd. 1,579,888 -- -- -- --
▇/▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇ ▇▇▇
1401 University Drive
Coral Springs, Florida 33071-8909
IAC Swap Sub, Ltd. 879,233 -- -- -- --
▇/▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇ ▇▇▇
1401 University Drive
Coral Springs, Florida 33071-8909
Irid Investor Holdings Ltd. 1,612,500 -- -- -- --
c/o L. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
American International Buildings
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Corporation . 4,500,000 -- -- -- --
c/o Mawarid Services (UK) Ltd.
Berkeley ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Schedule I to Parent Security Agreement
219
-2-
Iridium Andes-Caribe 2,447,304 -- -- -- --
Ed. Maploca II - Piso ▇
▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
Caracas, Venezuela
Iridium Brasil S/A 2,824,755 -- -- -- --
CX. ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ - ▇▇▇▇▇▇▇▇ - ▇▇ -
▇▇▇▇▇▇
Iridium Canada, Inc. 5,250,000 -- -- -- --
c/o BCE Mobile
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Iridium China (Hong Kong) Ltd. 5,250,000 -- -- -- --
12/F Conic Investment ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Iridium India Telecom Limited 5,250,000 -- -- -- --
c/o Industrial Development Bank of India
IDBI Tower, Cuffe Parade
Bombay -- 400 005 India
Iridium Italia 5,550,000 -- -- -- --
c/o Telecom Italia SpA
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Iridium Middle East Corporation 6,000,000 -- -- -- --
c/o Carlyle International
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
-or-
c/o Mawarid Services (UK) Ltd.
Berkeley ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Iridium World Communications Ltd. 12,093,969 -- -- -- --
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Khrunichev State Research and 6,133,125 -- -- -- --
Production Space ▇▇▇▇▇▇
▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇
Russian Federation
Lockheed ▇▇▇▇▇▇ Corporation 1,500,000 -- -- -- --
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
ORGN ▇▇-▇▇, ▇▇▇▇. ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Schedule I to Parent Security Agreement
220
-3-
Motorola, Inc. 24,477,000 -- -- 1 75
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Nippon Iridium (Bermuda) Limited 15,750,000 -- -- -- --
c/o NIPPON IRIDIUM CORPORATION
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Pacific Asia Communications Ltd. 5,250,000 -- -- -- --
c/o Pacific Iridium Telecommunications Co., Ltd.
19/F, 169 Sec.4, Jen-A: Road
Taipei 106, Taiwan, R.O.C.
Raytheon Company 900,000 -- -- -- --
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SK Telecom 5,250,000 -- 16,381.7 -- --
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇-▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
South Pacific Iridium Holdings Limited 1,169,010 -- -- -- --
c/▇ ▇▇▇▇▇▇ Westwood & Riegels
Road Town, Tortola
British Virgin Islands
South Pacific Iridium Holdings Limited II 2,137,500 -- -- -- --
▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇. O. Box 71
Road Town, Tortola
British Virgin Islands
Sprint Iridium, Inc. 5,250,000 -- 16,381.6 -- --
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Thai Satellite Telecommunications Co., Ltd. 5,250,000 -- -- -- --
c/o United Communication
Industry Co. Ltd.
▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇.
Soi ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
VEBACOM Holdings, Inc. 12,427,875 -- -- -- --
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
TOTAL 141,313,149 -- 87,786.2 1 75
Schedule I to Parent Security Agreement
221
EXHIBIT D
[FORM OF SUBSIDIARY GUARANTEE AGREEMENT]
SUBSIDIARY GUARANTEE AGREEMENT
GUARANTEE AGREEMENT dated as of ____________ __, 199_ between:
each of the entities identified under the caption "SUBSIDIARY GUARANTOR" on the
signature pages hereto or which shall become a Subsidiary Guarantor for purposes
hereof pursuant to Section 6.11 of the Credit Agreement referred to below (each
individually, a "Subsidiary Guarantor" and, collectively, the "Subsidiary
Guarantors"); and THE CHASE MANHATTAN BANK, as administrative agent for the
lenders party to the Credit Agreement referred to below (in such capacity,
together with its successors in such capacity, the "Administrative Agent").
Iridium Operating LLC, a Delaware limited liability company (the
"Company"), the lenders named therein (the "Lenders"), the Administrative Agent,
The Chase Manhattan Bank, as Collateral Agent, and Barclays Bank PLC, as
Documentation Agent are parties to a Senior Secured Credit Agreement dated as of
December 23, 1998 (as modified, supplemented or otherwise modified and in effect
from time to time, the "Credit Agreement"), providing, subject to the terms and
conditions thereof, for loans to be made by the Lenders to the Company in an
aggregate principal amount not exceeding $800,000,000.
To induce the Lenders to enter into the Credit Agreement and to
extend credit thereunder, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, each Subsidiary
Guarantor has agreed to guarantee the Guaranteed Obligations (as hereinafter
defined). Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. Capitalized terms used but not
defined herein shall have their respective defined meanings in the Credit
Agreement.
SECTION 1.02. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified, including an amendment
and restatement thereof, but subject to any restrictions on such amendments,
supplements or modifications set forth herein, (b) any reference herein to any
Person shall be construed to include such Person's successors and assigns or, in
the case of any Governmental Authority, any entity succeeding to any or all of
the functions of such Governmental Authority, (c) the words "herein", "hereof"
and "hereunder", and
Subsidiary Guarantee Agreement
222
-2-
words of similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof, (d) all references herein
to Articles and Sections shall be construed to refer to Articles and Sections of
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
ARTICLE II
GUARANTEE
SECTION 2.01. The Guarantee. The Subsidiary Guarantors hereby
jointly and severally guarantee to each Lender and each Agent and their
respective successors and assigns the prompt payment in full when due (whether
at stated maturity, by acceleration or otherwise) of the principal of and
interest on the Loans made by the Lenders to the Company and all other amounts
from time to time owing to the Lenders or the Agents by the Company under the
Credit Agreement and the other Credit Document, in each case strictly in
accordance with the terms thereof (such obligations being herein collectively
called the "Guaranteed Obligations"). The Subsidiary Guarantors hereby further
jointly and severally agree that if the Company shall fail to pay in full when
due (whether at stated maturity, by acceleration or otherwise) any of the
Guaranteed Obligations, the Subsidiary Guarantors will promptly pay the same,
without any demand or notice whatsoever, and that in the case of any extension
of time of payment or renewal of any of the Guaranteed Obligations, the same
will be promptly paid in full when due (whether at extended maturity, by
acceleration or otherwise) in accordance with the terms of such extension or
renewal.
SECTION 2.02. Obligations Unconditional. The obligations of the
Subsidiary Guarantors under Section 2.01 are absolute and unconditional, joint
and several, irrespective of the value, genuineness, validity, regularity or
enforceability of the Credit Agreement, any other Credit Document or any other
agreement or instrument referred to herein or therein, or any substitution,
release or exchange of any other guarantee of or security for any of the
Guaranteed Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Article II that the obligations of the Subsidiary
Guarantors hereunder shall be absolute and unconditional, joint and several,
under any and all circumstances. Without limiting the generality of the
foregoing, it is agreed that the occurrence of any one or more of the following
shall not alter or impair the liability of the Subsidiary Guarantors hereunder
which shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the
Subsidiary Guarantors, the time for any performance of or compliance with
any of the Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of the
Credit Agreement, any other Credit Document or any other agreement or
instrument referred to herein or therein shall be done or omitted;
Subsidiary Guarantee Agreement
223
-3-
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under the Credit
Agreement, any other Credit Document or any other agreement or instrument
referred to herein or therein shall be waived or any other guarantee of any
of the Guaranteed Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of, any
Agent or any Lender or Lenders as security for any of the Guaranteed
Obligations shall fail to be perfected.
The Subsidiary Guarantors hereby expressly waive diligence, presentment, demand
of payment, protest and all notices whatsoever, and any requirement that any
Agent or Lender exhaust any right, power or remedy or proceed against the
Company under the Credit Agreement, any other Credit Document or any other
agreement or instrument referred to herein or therein, or against any other
Person under any other guarantee of, or security for, any of the Guaranteed
Obligations.
SECTION 2.03. Reinstatement. The obligations of the Subsidiary
Guarantors under this Article II shall be automatically reinstated if and to the
extent that for any reason any payment by or on behalf of the Company in respect
of the Guaranteed Obligations is rescinded or must be otherwise restored by any
holder of any of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, and the Subsidiary
Guarantors jointly and severally agree that they will indemnify the
Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, fees of counsel) incurred by the
Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
SECTION 2.04. Subrogation. The Subsidiary Guarantors hereby
jointly and severally agree that until the payment and satisfaction in full of
all Guaranteed Obligations and the expiration or termination of the Commitments
of the Lenders under the Credit Agreement they shall not exercise any right or
remedy arising by reason of any performance by them of their guarantee in
Section 2.01, whether by subrogation or otherwise, against the Company or any
other guarantor of any of the Guaranteed Obligations or any security for any of
the Guaranteed Obligations.
SECTION 2.05. Remedies. The Subsidiary Guarantors jointly and
severally agree that, as between the Subsidiary Guarantors and the Lenders, the
obligations of the Company under the Credit Agreement may be declared to be
forthwith due and payable as provided in Article IX of the Credit Agreement (and
shall be deemed to have become automatically due and payable in the
circumstances provided in said Article IX) for purposes of Section 2.01
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against the Company and that, in the event of such declaration (or such
obligations being deemed to have become automatically due and payable), such
obligations (whether or not due and payable by the
Subsidiary Guarantee Agreement
224
-4-
Company) shall forthwith become due and payable by the Subsidiary Guarantors for
purposes of Section 2.01.
SECTION 2.06. Instrument for the Payment of Money. Each Subsidiary
Guarantor hereby acknowledges that the guarantee in this Article II constitutes
an instrument for the payment of money, and consents and agrees that any Lender
or the Administrative Agent, at its sole option, in the event of a dispute by
such Subsidiary Guarantor in the payment of any moneys due hereunder, shall have
the right to bring motion-action under New York CPLR Section 3213.
SECTION 2.07. Continuing Guarantee. The guarantee in this Article
II is a continuing guarantee, and shall apply to all Guaranteed Obligations
whenever arising.
SECTION 2.08. Rights of Contribution. The Subsidiary Guarantors
hereby agree, as between themselves, that if any Subsidiary Guarantor shall
become an Excess Funding Subsidiary Guarantor (as defined below) by reason of
the payment by such Subsidiary Guarantor of any Guaranteed Obligations, each
other Subsidiary Guarantor shall, on demand of such Excess Funding Subsidiary
Guarantor (but subject to the next sentence), pay to such Excess Funding
Subsidiary Guarantor an amount equal to such Subsidiary Guarantor's Pro Rata
Share (as defined below and determined, for this purpose, without reference to
the Properties, debts and liabilities of such Excess Funding Subsidiary
Guarantor) of the Excess Payment (as defined below) in respect of such
Guaranteed Obligations. The payment obligation of a Subsidiary Guarantor to any
Excess Funding Subsidiary Guarantor under this Section shall be subordinate and
subject in right of payment to the prior payment in full of the obligations of
such Subsidiary Guarantor under the other provisions of this Article II and such
Excess Funding Subsidiary Guarantor shall not exercise any right or remedy with
respect to such excess until payment and satisfaction in full of all of such
obligations.
For purposes of this Section, (i) "Excess Funding Subsidiary
Guarantor" shall mean, in respect of any Guaranteed Obligations, a Subsidiary
Guarantor that has paid an amount in excess of its Pro Rata Share of such
Guaranteed Obligations, (ii) "Excess Payment" shall mean, in respect of any
Guaranteed Obligations, the amount paid by an Excess Funding Subsidiary
Guarantor in excess of its Pro Rata Share of such Guaranteed Obligations and
(iii) "Pro Rata Share" shall mean, for any Subsidiary Guarantor, the ratio
(expressed as a percentage) of (x) the amount by which the aggregate fair
saleable value of all Properties of such Subsidiary Guarantor (excluding any
shares of stock of any other Subsidiary Guarantor) exceeds the amount of all the
debts and liabilities of such Subsidiary Guarantor (including contingent,
subordinated, unmatured and unliquidated liabilities, but excluding the
obligations of such Subsidiary Guarantor hereunder and any obligations of any
other Subsidiary Guarantor that have been Guaranteed by such Subsidiary
Guarantor) to (y) the amount by which the aggregate fair saleable value of all
Properties of all of the Subsidiary Guarantors exceeds the amount of all the
debts and liabilities (including contingent, subordinated, unmatured and
unliquidated liabilities, but excluding the obligations of the Subsidiary
Guarantors hereunder) of all of the Subsidiary Guarantors, determined (A) with
respect to any Subsidiary Guarantor that is a party hereto on the date hereof,
as of the date hereof, and (B) with respect to any other Subsidiary Guarantor,
as of the date such Subsidiary Guarantor becomes a Subsidiary Guarantor
hereunder.
Subsidiary Guarantee Agreement
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SECTION 2.09. General Limitation on Guarantee Obligations. In any
action or proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Subsidiary Guarantor under
Section 2.01 would otherwise, taking into account the provisions of Section
2.08, be held or determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount of
its liability under Section 2.01, then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall, without any further
action by such Subsidiary Guarantor, the Administrative Agent, the Lenders or
any other Person, be automatically limited and reduced to the highest amount
that is valid and enforceable and not subordinated to the claims of other
creditors as determined in such action or proceeding.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each Subsidiary Guarantor represents and warrants to the Lenders
and the Administrative Agent that:
SECTION 3.01. Corporate Existence. Such Subsidiary Guarantor: (a)
is a corporation, limited liability company, partnership or other entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation; (b) has all requisite corporate power to own
its assets and carry on its business as now being or as proposed to be
conducted; and (c) is qualified to do business and is in good standing in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify could reasonably be
likely (either individually or in the aggregate) to have a Material Adverse
Effect.
SECTION 3.02. No Conflicts. None of the execution and delivery of
this Agreement and the Security Agreement, the consummation of the transactions
herein or therein contemplated or compliance with the terms and provisions
hereof or thereof will conflict with or result in a breach of, or require any
consent under, the charter, by-laws or other organizational documents of such
Subsidiary Guarantor, or any applicable law or regulation, or any order, writ,
injunction or decree of any court or governmental authority or agency, or any
material agreement or instrument to which such Subsidiary Guarantor is a party
or by which any of them is bound or to which any of them is subject, or
constitute a default under any such agreement or instrument, or result in the
creation or imposition of any Lien (other than a Permitted Lien) upon any of the
revenues or assets of such Subsidiary Guarantor pursuant to the terms of any
such agreement or instrument.
SECTION 3.03. Corporate Action. Such Subsidiary Guarantor has all
necessary corporate power and authority to execute, deliver and perform its
obligations under this Agreement and the Security Agreement; the execution,
delivery and performance by such Subsidiary Guarantor of this Agreement and the
Security Agreement have been duly authorized by all necessary corporate action
on its part; and each of this Agreement and the Security Agreement has been duly
and validly executed and delivered by such Subsidiary Guarantor and
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constitutes its legal, valid and binding obligation, enforceable in accordance
with its respective terms.
SECTION 3.04. Approvals. No authorizations, approvals or consents
of, and no filings or registrations with, any Governmental Authority are
necessary for the execution, delivery or performance by such Subsidiary
Guarantor of this Agreement or the Security Agreement or for the validity or
enforceability hereof or thereof.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. No Waiver. No failure on the part of the
Administrative Agent or any Lender to exercise, and no course of dealing with
respect to, and no delay in exercising, any right, power or remedy hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise by
the Administrative Agent or any Lender of any right, power or remedy hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy. The remedies herein are cumulative and are not exclusive
of any remedies provided by law.
SECTION 4.02. Notices. All notices, requests, consents and demands
hereunder shall be in writing and telecopied or delivered to the intended
recipient at its respective address specified in Section 11.01 of the Credit
Agreement (or, in the case of the Subsidiary Guarantors, such address of the
Company) or, as to any party, at such other address as shall be designated by
such party in a notice to each other party. Except as otherwise provided in this
Agreement, all such communications shall be deemed to have been duly given when
transmitted by telecopier or personally delivered or, in the case of a mailed
notice, upon receipt, in each case given or addressed as aforesaid.
SECTION 4.03. Expenses. The Subsidiary Guarantors jointly and
severally agree to reimburse each of the Lenders and the Administrative Agent
for all reasonable costs and expenses of the Lenders and the Administrative
Agent (including, without limitation, the reasonable fees and expenses of legal
counsel) in connection with (i) any Event of Default and any enforcement or
collection proceeding resulting therefrom, including, without limitation, all
manner of participation in or other involvement with (x) bankruptcy, insolvency,
receivership, foreclosure, winding up or liquidation proceedings, (y) judicial
or regulatory proceedings and (z) workout, restructuring or other negotiations
or proceedings (whether or not the workout, restructuring or transaction
contemplated thereby is consummated) and (ii) the enforcement of this Section.
SECTION 4.04. Amendments, Etc. The terms of this Agreement may be
waived, altered or amended only by an instrument in writing duly executed by
each Subsidiary Guarantor and the Administrative Agent. Any such amendment or
waiver shall be binding upon the Administrative Agent, each Lender, each holder
of any of the Guaranteed Obligations and each Subsidiary Guarantor.
SECTION 4.05. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the respective successors and assigns
of each Subsidiary Guarantor,
Subsidiary Guarantee Agreement
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the Administrative Agent, the Lenders and each holder of any of the Guaranteed
Obligations, provided, however, that no Subsidiary Guarantor shall assign or
transfer its rights hereunder without the prior written consent of the
Administrative Agent.
SECTION 4.06. Captions. The captions and section headings used
herein are for convenience of reference only, are not part of this Agreement and
shall not effect construction of, or be taken into consideration, in the
interpreting of this Agreement.
SECTION 4.07. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract.
SECTION 4.08. Governing Law; Jurisdiction; Consent to Service of
Process.
(a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) Each Subsidiary Guarantor hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or any other Credit Document to
which it is a party, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Administrative Agent
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement against any Subsidiary Guarantor or its properties in the courts
of any jurisdiction.
(c) Each Subsidiary Guarantor hereby irrevocably appoints CT
Corporation (the "Process Agent") with an office on the date hereof at ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its agent to receive on behalf of it and
its property service of copies of the summons and complaint and any other
process which may be served in any such suit, action or proceeding. Such service
may be made by mailing or delivering a copy of such process to any Subsidiary
Guarantor, in care of the Process Agent at the Process Agent's above address and
each Subsidiary Guarantor hereby irrevocably authorizes and directs the Process
Agent to receive such service on its behalf. The Administrative Agent and each
Lender agree to mail to each Subsidiary Guarantor at its address provided under
Section 4.02 a copy of any summons, complaint, or other process mailed or
delivered by it to such Subsidiary Guarantor in care of the Process Agent. As an
alternate method of service, each Subsidiary Guarantor also irrevocably consents
to the service of any and all process in any such suit, action or proceeding by
mailing of copies of such process to it at its address provided under Section
4.02. All mailings under this Section shall be by certified mail, return receipt
requested. Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
Subsidiary Guarantee Agreement
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(d) Each Subsidiary Guarantor hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(e) To the extent that any Subsidiary Guarantor may be or become
entitled, in any jurisdiction in which judicial proceedings may at any time be
commenced with respect to this Agreement, to claim for itself or its property or
revenues any immunity from suit, court jurisdiction, attachment prior to
judgment, attachment in aid of execution of a judgment, execution of a judgment
or from any other legal process or remedy relating to its obligations under this
Agreement and to the extent that in any such jurisdiction there may be
attributed such an immunity (whether or not claimed), such Subsidiary Guarantor
hereby irrevocably agrees not to claim and hereby irrevocably waives such
immunity to the fullest extent permitted by the laws of such jurisdiction.
SECTION 4.09. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 4.10. No Third Party Beneficiaries. The agreements of the
parties hereto are solely for the benefit of the Subsidiary Guarantors, the
Administrative Agent and the Lenders, and no other Person (including, without
limitation, any other Credit Party, any contractor, subcontractor, supplier or
materialman furnishing supplies, goods or services to or for the benefit of the
Project or any other creditor of the Company or any of its Subsidiaries) shall
have any rights hereunder.
SECTION 4.11. Severability. Any provision of this Agreement held
to be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
Subsidiary Guarantee Agreement
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IN WITNESS WHEREOF, the parties hereto have caused this Guarantee
Agreement to be duly executed and delivered as of the day and year first above
written.
SUBSIDIARY GUARANTORS
IRIDIUM CAPITAL CORPORATION
By
------------------------
Name:
Title:
IRIDIUM IP LLC
By
------------------------
Name:
Title:
IRIDIUM ROAMING LLC
By
------------------------
Name:
Title:
IRIDIUM FACILITIES CORPORATION
By
------------------------
Name:
Title:
Subsidiary Guarantee Agreement
230
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ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK,
as Administrative Agent
By
------------------------
Name:
Title:
Subsidiary Guarantee Agreement
231
EXHIBIT E
[FORM OF GUARANTEE ASSUMPTION AGREEMENT]
GUARANTEE ASSUMPTION AGREEMENT
GUARANTEE ASSUMPTION AGREEMENT dated as of [_______________,
199_], by [_______________________], a [______________ corporation/limited
liability company/partnership] (the "Additional Subsidiary Guarantor"), in favor
of THE CHASE MANHATTAN BANK, as administrative agent for the lenders party to
the Credit Agreement referred to below (in such capacity together with its
successors in such capacity, the "Administrative Agent").
Iridium Operating LLC, a Delaware limited liability company, the
lenders named therein (the "Lenders"), the Global Lead Arrangers, the
Administrative Agent and the Documentation Agent are parties to a Senior Secured
Credit Agreement dated as of December 23, 1998 (as modified, supplemented or
otherwise modified and in effect from time to time, the "Credit Agreement", the
terms defined therein and not otherwise defined herein being used as therein
defined).
Pursuant to Section 6.11 of the Credit Agreement, the Additional
Subsidiary Guarantor hereby agrees to become a "Subsidiary Guarantor" for all
purposes of the Subsidiary Guarantee Agreement, and an "Obligor" for all
purposes of the Security Agreement. Without limiting the generality of the
foregoing, the Additional Subsidiary Guarantor hereby, jointly and severally
with the other Subsidiary Guarantors, guarantees to each Lender and each Agent
and their respective successors and assigns the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of all Guaranteed
Obligations (as defined in the Subsidiary Guarantee Agreement) in the same
manner and to the same extent as is provided in Article II of the Subsidiary
Guarantee Agreement. In addition, the Additional Subsidiary Guarantor hereby
makes the representations and warranties set forth in Article III of the
Subsidiary Guarantee Agreement, and in Article II of the Security Agreement,
with respect to itself and its obligations under this Agreement (with any
reference in said Sections to the Credit Documents being deemed to include a
reference to this Agreement). In addition, Annexes 1, 2, 3, 4, 5 and 6 to the
Security Agreement shall be deemed to be supplemented in respect of the
Additional Subsidiary Guarantor as specified in Appendix A hereto.
Guarantee Assumption Agreement
232
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IN WITNESS WHEREOF, the Additional Subsidiary Guarantor has caused
this Guarantee Assumption Agreement to be duly executed and delivered as of the
day and year first above written.
[ADDITIONAL SUBSIDIARY GUARANTOR]
By
-----------------------------
Name:
Title:
Accepted and Agreed:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By
---------------------------
Name:
Title:
Guarantee Assumption Agreement
233
Appendix A to Guarantee
Assumption Agreement
Supplement to Annex 1:
[To be completed]
Supplement to Annex 2:
[To be completed]
Supplement to Annex 3:
[To be completed]
Supplement to Annex 4:
[To be completed]
Supplement to Annex 5:
[To be completed]
Supplement to Annex 6:
[To be completed]
Appendix A to Guarantee Assumption Agreement
234
EXHIBIT F
[FORM OF DEPOSITARY AGREEMENT]
DEPOSIT, DISBURSEMENT AND ACCOUNT CONTROL AGREEMENT dated as of
December __, 1998 between: IRIDIUM OPERATING LLC, a Delaware limited liability
company (the "Company"); THE CHASE MANHATTAN BANK ("Chase"), in its capacity as
collateral agent Hunder the Credit Agreement and the other Credit Documents
referred to below (together with its successors and permitted assigns in such
capacity, the "Collateral Agent"); and THE CHASE MANHATTAN BANK in its capacity
as depositary bank (together with its successors in such capacity, the
"Depositary Bank").
R E C I T A L S
WHEREAS, the Company, the Global Lead Arrangers named therein, the
Lenders party thereto, the Collateral Agent, Chase, in its capacity as the
Administrative Agent, and Barclays Bank PLC, in its capacity as the
Documentation Agent, have entered into a Senior Secured Credit Agreement dated
as of December 23, 1998 (as amended, supplemented or otherwise modified and in
effect from time to time, the "Credit Agreement"), providing, subject to the
terms and conditions thereof, for the Lenders to make loans to the Company in an
aggregate principal amount not exceeding $800,000,000;
WHEREAS, the obligations of the Company under the Credit Agreement
and the other Credit Documents (as defined in the Credit Agreement) will be
secured by certain of the assets of the Company pursuant to certain of the
Security Documents;
WHEREAS, the Collateral Agent and the Company desire to appoint
the Depositary Bank to act as depositary bank with respect to the various
Accounts (as defined below) established with the corporate trust department of
the Depositary Bank at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ pursuant to this Agreement; and
WHEREAS, the Depositary Bank has agreed to establish and maintain
the Accounts in accordance with this Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Depositary Agreement
235
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ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned thereto in the Credit
Agreement, whether specifically set forth therein or by reference to another
document. Unless otherwise stated, any reference in this Agreement to any Person
shall include its permitted successors and assigns and, in the case of any
Government Authority, any Person succeeding to its functions and capacities. In
addition, as used herein the following terms shall have the following respective
meanings (all terms defined in this Section and in the other provisions of this
Agreement in the singular to have the same meanings when used in the plural and
vice versa):
"Accounts" means the accounts specified in Section 3.01.
"Authorized Officer" means (a) with respect to the Company, any
Responsible Officer the names (and specimen signatures) of which shall be
specified in writing from time to time by the Company to the Depositary Bank and
(b) with respect to the Collateral Agent, any officer or other representative of
the Collateral Agent designated in writing to the Depositary Bank to act for the
Collateral Agent for purposes of this Agreement.
"General Receipt & Disbursement Account" means the account
entitled "Iridium General Receipt & Disbursement Account" established and
maintained by the Depositary Bank.
"Iridium Clearing Account" means one or more Dollar accounts
(including, without limitation, the Iridium Sub-Clearing Account) of the Company
established and maintained with depository institutions that may be located in
the United States of America or offshore and will be used for the purpose of
settling payments due to the Company and its Subsidiaries from, and payments due
by the Company and its Subsidiaries to, other parties in connection with the
operation of the Iridium Business, all as generally contemplated by Article VI
of the Gateway Authorization Agreements.
"Iridium Sub-Clearing Account" means one or more accounts that are
part of the Iridium Clearing Account and hold moneys paid from time to time to
the Company or any of its Subsidiaries as a result of the settlement process
effected through the Iridium Clearing Account.
"Loss Proceeds Account" means the account entitled "Iridium Loss
Proceeds Account" established and maintained by the Depositary Bank.
"Permitted Investments" means:
(a) direct obligations of, or obligations guaranteed by, the
United States of America for the payment of which obligations or guarantee
the full faith and credit of the United States of America is pledged and
which have a remaining Average Life of not more than 365 days from the date
of acquisition thereof;
(b) investments in commercial paper maturing not more than 270
days after the date of acquisition thereof and having, at such date of
acquisition, a credit rating of at
Depositary Agreement
236
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least P-1 from S&P or A-1 from ▇▇▇▇▇'▇ (or such similar equivalent rating
by at least one "nationally recognized statistical rating organization" (as
defined in Rule 436 under the Securities Act of 1933, as amended));
(c) investments in certificates of deposit, banker's acceptances
and time deposits maturing not more than 270 days after the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any commercial bank or trust
company organized under the laws of the United States of America or any
State thereof or any other country which is a member of the Organization
for Economic Cooperation and Development, in each case which has a combined
capital, surplus and undivided profits of not less than $500,000,000 or its
equivalent in foreign currency, and whose debt is rated at least A- by S&P
or A-3 by ▇▇▇▇▇'▇ (or such similar equivalent rating by a "nationally
recognized statistical rating organization" (as defined above));
(d) repurchase obligations with a term of not more than 7 days for
securities described in clause (a) of this definition and entered into with
a financial institution which has a combined capital, surplus and undivided
profits of not less than $500,000,000 or its equivalent in foreign
currency, and whose debt is rated at least A- by from S&P or A-3 by ▇▇▇▇▇'▇
(or such similar equivalent rating by a "nationally recognized statistical
rating organization" (as defined above)); and
(e) any mutual or similar fund investing exclusively in Permitted
Investments of the type described in clauses (a), (b), (c) and/or (d)
above.
"Prepayment Account" means the account entitled "Iridium
Prepayment Account" established and maintained by the Depositary Bank.
"Responsible Officer" means the chief executive officer, chief
financial officer, general counsel, any senior vice president, any vice
president or the treasurer of the Company.
"Restoration Sub-Account" means the "Iridium Restoration Sub-
Account" established and maintained by the Depositary Bank.
"Secured Obligations" has the meaning assigned to such term in the
Security Agreement.
"Termination Date" means the date on which the Collateral Agent
shall advise the Depositary Bank in writing that all principal of and interest
on the Loans and all other amounts owing by the Company or any of its
Subsidiaries under the Credit Agreement and the other Credit Documents have been
paid in full and that the Commitments have expired or terminated.
SECTION 1.02. Uniform Commercial Code. As used herein, the term
"UCC" shall mean the Uniform Commercial Code as in effect in the State of New
York. All terms defined in the UCC shall have the respective meanings given to
those terms in the UCC, except where the context otherwise requires.
Depositary Agreement
237
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SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified, including an amendment
and restatement thereof, but subject to any restrictions on such amendments,
supplements or modifications set forth herein, (b) any reference herein to any
Person shall be construed to include such Person's successors and assigns or, in
the case of any Government Authority, any successor or other entity that
performs equivalent functions in whole or in part, (c) the words "herein",
"hereof" and "hereunder", and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision
hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules
shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, this Agreement and (e) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
ARTICLE II
ACCEPTANCE OF APPOINTMENT AS COLLATERAL AGENT
AND DEPOSITARY BANK
SECTION 2.01. Acceptance of Appointment as Collateral Agent .
Chase does hereby agree to serve as Collateral Agent for the benefit of the
Secured Parties under this Agreement.
SECTION 2.02. Depositary Bank.
(a) Acceptance of Appointment of Depositary Bank. Chase hereby
agrees to act as Depositary Bank under this Agreement. The Company and the
Collateral Agent hereby acknowledge and agree that the Depositary Bank shall act
as Depositary Bank under this Agreement.
(b) Confirmation and Agreement. The Depositary Bank acknowledges,
confirms and agrees that (i) the Depositary Bank has established the Accounts as
set forth in Section 3.01, (ii) each Account is a securities account in respect
of which the Depository Bank is the securities intermediary, (iii) the Company
is the entitlement holder of the Accounts, (iv) all cash and other property
delivered to the Depositary Bank pursuant to this Agreement or the other
Security Documents will be promptly credited to an Account, (v) all securities
in registered form or payable to, or to order of a person, and credited to any
Account shall be registered in the name of, payable to or to the order of, or
specially indorsed to, the Depositary Bank or in blank, or credited to another
securities account maintained in the name of the Depositary Bank, and in no case
will any securities credited to any Account be registered in the name of,
payable to or to the order of, or specially indorsed to, the Company except to
the extent the foregoing have been
Depositary Agreement
238
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specially indorsed by the Company to the Depositary Bank or in blank, (vi) the
Depositary Bank shall promptly comply with all instructions of the Collateral
Agent and, to the limited extent set forth in Section 2.03, the Company in
connection with the transfer or withdrawal of amounts in the Accounts and (vii)
the Depositary Bank shall not change the name or account number of any Account
without the prior written consent of the Collateral Agent and at least 5
Business Days prior notice to the Company.
(c) Financial Assets Election. Each of the Company, the Collateral
Agent and the Depositary Bank agrees that each item of property (whether cash, a
security, an instrument or obligation, share, participation, interest or any
other property whatsoever) credited to any Account shall be treated as a
financial asset under Article 8 of the UCC.
(d) Entitlement Orders. Anything herein to the contrary
notwithstanding, the Company irrevocably agrees that the Depositary Bank may,
and the Depositary Bank agrees that it shall, comply with entitlement orders
originated by the Collateral Agent and relating to any Account without further
consent by the Company or any other Person and without regard to whether the
Collateral Agent is, under the terms and conditions of this Agreement, entitled
to give such entitlement orders. If there is any conflict between entitlement
orders originated by the Company and entitlement orders originated by the
Collateral Agent, the latter shall control.
(e) Subordination of Lien; Waiver of Set-Off. In the event that
the Depositary Bank has or subsequently obtains by agreement, operation of law
or otherwise a lien or security interest in any Account or any security
entitlement credited thereto, the Depositary Bank agrees that such lien or
security interest shall be subordinate to the lien and security interest of the
Collateral Agent. The financial assets standing to the credit of the Accounts
will not be subject to deduction, set-off, banker's lien, or any other right in
favor of any Person other than the Collateral Agent (except the amount of any
checks which have been credited to any Account but are subsequently returned
unpaid because of uncollected or insufficient funds).
(f) No Other Agreements. None of the Depositary Bank, the
Collateral Agent or the Company has entered into any agreement with respect to
the Accounts or any financial assets credited to any Account other than this
Agreement, in the case of the parties hereto, and the Credit Agreement and the
Security Agreement, in the case of the Company and the Collateral Agent, similar
agreements entered into pursuant to the Existing Secured Credit Agreement and
agreements pursuant to which payments are to be made into the Accounts. The
Depositary Bank has not entered into any agreement with the Company or any other
Person purporting to limit or condition the obligation of the Depositary Bank to
comply with entitlement orders originated by the Collateral Agent in accordance
with Section 2.02(d). In the event of any conflict between this Agreement (or
any portion hereof) or any other Security Document or any other agreement now
existing or hereafter entered into (other than the Credit Agreement), the terms
of this Agreement shall prevail for purposes hereof.
(g) Notice of Adverse Claims. Except for the claims and interest
of the Collateral Agent and the Company in each of the Accounts, the Depositary
Bank does not know of any claim to, or interest in, any Account or in any
financial asset credited thereto. If any Person asserts any lien, encumbrance or
adverse claim (including any writ, garnishment, judgment, warrant of attachment,
execution or similar process) against any Account or in any financial
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▇▇▇▇▇ credited thereto, the Depositary Bank will promptly notify the Collateral
Agent and the Company thereof.
(h) Rights and Powers of the Collateral Agent. The agreement
hereunder of the Depositary Bank to comply with entitlement orders of the
Collateral Agent is irrevocable during the term of this Agreement and has been
made in order to perfect the lien upon and security interests in the Accounts in
favor of the Collateral Agent and will be affected by neither the bankruptcy of
the Company nor the lapse of time.
SECTION 2.03. Limitation on Company's Rights. Until the
Termination Date, the Company shall not have any rights to withdraw cash or
other property held in or credited to the Accounts, except for the right to give
instructions to the Depositary Bank to make withdrawals of moneys held in the
Accounts as permitted by this Agreement and the right to direct the investment
of moneys held in the Accounts as permitted by Section 5.03.
ARTICLE III
ESTABLISHMENT OF THE ACCOUNTS
SECTION 3.01. Establishment of the Accounts. The Depositary Bank
has established the following special, segregated securities accounts (the
"Accounts") which (except as expressly provided herein) shall be maintained at
all times until the termination of this Agreement:
(1) the General Receipt & Disbursement Account;
(2) the Loss Proceeds Account; and
(3) the Prepayment Account.
The Depositary Bank has established the Restoration Sub-Account
within the Loss Proceeds Account.
In the event that, in accordance with this Agreement, the
Depositary Bank is required to segregate certain moneys in any Account from any
other amounts on deposit in such Account pending transfer or withdrawal in
accordance with this Agreement, the Depositary Bank shall (subject to Section
5.03) either (i) hold such moneys in such Account for use solely for such
transfer or withdrawal or (ii) if requested in a certificate of an Authorized
Officer of the Collateral Agent, create a separate sub-account for such purpose.
For ease of administration or if deemed advisable or necessary by the Collateral
Agent to give effect to the purposes of this Agreement, the Depositary Bank may,
with the consent of the Collateral Agent and upon notice to the Company and the
Collateral Agent, establish other sub-accounts within any Account.
SECTION 3.02. Lien and Security Interest, Etc. As collateral
security for the prompt payment in full when due of the Secured Obligations, the
Company hereby pledges, assigns, hypothecates and transfers to the Collateral
Agent for the equal and ratable benefit of the Secured Parties, and hereby
grants to the Collateral Agent for the equal and ratable benefit of the Secured
Parties a lien on and security interest in, all of the Company's right, title
and interest, whether now owned or hereafter acquired, in and to (i) each
Account and (ii) all cash, investments, securities or other property at any time
on deposit in or credited to any Account,
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including all income or gain earned thereon and any proceeds thereof. For
avoidance of doubt, and not withstanding anything herein to the contrary, the
security interests purported to be created by this Agreement and the Security
Agreement do not include the Iridium Clearing Account or any cash or other
property on deposit therein or credited thereto.
SECTION 3.03. Termination. This Agreement shall remain in full
force and effect until the Termination Date.
ARTICLE IV
OPERATION OF THE ACCOUNTS
SECTION 4.01. General Receipt & Disbursement Account.
(a) Deposits into General Receipt & Disbursement Account. The
Company agrees, and will take all necessary action to ensure, that the following
amounts shall be deposited directly into the General Receipt & Disbursement
Account:
(i) all proceeds of the Loans under the Credit Agreement;
(ii) all proceeds of the loans under the Motorola Guaranteed
Credit Agreement;
(iii) all amounts transferred from the Loss Proceeds Account
pursuant to Section 4.02(b)(iii);
(iv) all amounts transferred from the Prepayment Account pursuant
to Section 4.03(b)(iii);
(v) all dividends or other distributions, or other payments, in
cash by any Subsidiary of the Company to the Company;
(vi) any income from the investment of moneys in the Accounts
pursuant to Section 5.03;
(vii) all other income (howsoever earned), revenue (howsoever
generated) and proceeds of any nature whatsoever received by the Company or
any of its Subsidiaries (but excluding (i) any amounts required or
permitted by this Agreement to be deposited to another Account, (ii) any
amounts which are held in, or to be credited to, the Iridium Clearing
Account, or any interest earned with respect to such amount while so held
in the Iridium Clearing Account (other than the Iridium Sub-Clearing
Account to the extent provided in clause (viii) below) and (iii) the
proceeds of any Debt Incurrence permitted under Section 7.01(f) of the
Credit Agreement which are being used to Refinance outstanding
Indebtedness, or proceeds of any Debt Incurrence permitted under Section
7.01(d) which are being used to Refinance Deferred O&M Amounts, but only to
the extent such proceeds are paid to the lenders of such outstanding
Indebtedness and no prepayment is required in connection with such Debt
Incurrence pursuant to Section 2.09 of the Credit Agreement); and
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(▇▇▇▇) all amounts in the Iridium Sub-Clearing Account to the
extent required to be transferred to the General Receipt & Disbursement
Account pursuant to Section 4.01(d).
(b) Disbursements from General Receipt & Disbursement Account.
Except as otherwise provided in this Agreement, the amounts held in the General
Receipt & Disbursement Account shall be applied solely for the payment or
reimbursement of Costs. All moneys withdrawn from the General Receipt &
Disbursement Account shall be withdrawn in accordance with the disbursement
procedures set forth below:
(i) The Company may request the withdrawal of moneys in the
General Receipt & Disbursement Account for the purpose of paying or
reimbursing Costs or to transfer funds to one or more of the Local
Accounts. Upon receipt of instructions from an Authorized Officer of the
Company requesting a withdrawal of funds from the General Receipt &
Disbursement Account, the Depositary Bank shall effect such withdrawal and
either pay such funds to the intended payee(s) thereof or transfer such
funds to a Local Account, in each case as specified in such instructions.
The Company will furnish a copy of each such instruction to the Collateral
Agent. All funds held in the General Receipt & Disbursement Account shall
be used by the Company from time to time to make payment or reimbursement
of Costs or any other payments permitted under the Credit Agreement as the
Company shall direct, but in any event all payments in respect of the Space
System Contract, the Terrestrial Network Development Contract and the O&M
Contract and all payments in respect of Indebtedness of the Company and its
Subsidiaries will be made from funds in the General Receipt & Disbursement
Account.
(ii) If at any time the amount available to be applied to the
payment of any of the Company's obligations under clause (i) above is
insufficient to pay in full all amounts required to be paid thereunder, the
Depositary Bank shall promptly advise the Company (with a copy to the
Collateral Agents) of such insufficiency and shall not make payment of any
amounts unless and until the Company has specified in writing to the
Depositary Bank the payee(s) and amount(s) to be so paid with the amounts
available.
(iii) Notwithstanding anything herein to the contrary, the amount
of any proceeds of workers' compensation insurance, comprehensive general
liability insurance and comprehensive automobile liability insurance
received by the Company and deposited into the General Receipt &
Disbursement Account which is required to be paid over by the Company to
any Person other than the Company or any of its Subsidiaries shall be, upon
receipt of a written request from an Authorized Officer of the Company that
such proceeds that have been deposited into the General Receipt &
Disbursement Account are required to be so paid over, promptly disbursed to
the Company, whereupon such proceeds shall be paid over by the Company to
the Person(s) entitled thereto.
(c) Local Accounts. In addition to the Accounts, the Company may
at any time from and after the date hereof establish and maintain one or more
other deposit accounts (each hereinafter referred to as a "Local Account") with
(i) The Chase Manhattan Bank (or such other commercial bank which shall from
time to time act as the Collateral Agent hereunder) (the "Chase Local
Accounts"), (ii) any other depository institution designated by the Company
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located in the United States of America (the "Other Domestic Local Accounts"
and, together with the Chase Local Accounts, the "Domestic Local Accounts") and
(iii) one or more deposit accounts with any depository institution designated by
the Company located outside of the United States (the "Foreign Local Accounts"
and, together with the Other Domestic Local Accounts, the "Other Local
Accounts"); provided that (x) the maximum aggregate amount of cash or other
property at any time held in or credited to the Other Local Accounts shall be
$15,000,000 and (y) each Domestic Local Account shall be and at all times remain
subject to the security interest created under this Agreement and the Security
Agreement, and the Company shall cause each such depositary institution therefor
to execute and deliver such acknowledgment, agreement or other documentation,
and/or establish such control arrangements, as the Collateral Agent may
reasonably request to give effect to the purposes of this Section. All funds
held in the Local Accounts may be used by the Company from time to time to make
payment or reimbursement of Costs as the Company shall direct (subject to the
last sentence of Section 4.01(b)(i)); provided that funds held in any Foreign
Local Account may be used by the Company only for the payment of operating
expenses (including taxes) owing by the Company in the jurisdiction in which
such Foreign Local Account is located. The Local Accounts shall not constitute
Accounts and, except as provided in this Section 4.01(c), shall not be subject
to the terms of this Agreement.
(d) Iridium Clearing Account. Notwithstanding anything herein to
the contrary, no cash or other property in the Iridium Clearing Account shall be
required to be deposited into any of the Accounts (nor shall the Secured Parties
have any interest in such cash or other property), except as provided in this
paragraph. So long as no Event of Default shall have occurred and be continuing,
the Company will cause, within 10 Business Days following the last day of each
calendar month, all cash and other property held in or credited to the Iridium
Sub-Clearing Account as of such last day to be transferred into the General
Receipt & Disbursement Account. Upon deposit into the General Receipt &
Disbursement Account, such cash and other property may be withdrawn in
accordance with the provisions of Section 4.01(b). If at any time an Event of
Default shall have occurred and be continuing, the Depositary Bank, upon
direction of an Authorized Officer of the Collateral Agent, shall direct the
Company to, and upon receipt of any such direction the Company will, immediately
transfer all cash or other property then held in or credited to the Iridium
Sub-Clearing Account to the General Receipt & Disbursement Account and,
thereafter so long as any Event of Default shall continue, will sweep all cash
and other property on a periodic basis (as directed by the Collateral Agent)
from the Iridium Sub-Clearing Account into the General Receipt & Disbursement
Account.
SECTION 4.02. Loss Proceeds Account.
(a) Deposits into Loss Proceeds Account. The Company agrees, and
will take all necessary action to ensure, that all Loss Proceeds in respect of
each Event of Loss payable to or received by the Company or any of its
Subsidiaries shall be deposited directly into the Loss Proceeds Account.
(b) Disbursements from Loss Proceeds Account.
(i) The Depositary Bank shall, subject to Section 5.04, from time
to time upon instructions of the Collateral Agent transfer the amounts on
deposit in the Loss Proceeds
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Account to the Administrative Agent for application to a prepayment of the
Loans at the times and in the amounts in accordance with Section 2.09(d) of
the Credit Agreement.
(ii) If the Company wishes to apply any Loss Proceeds deposited to
the Loss Proceeds Account to the Restoration of the property affected by an
Event of Loss, the Company shall give written notice thereof to the
Depositary Bank (with a copy to the Collateral Agent) prior to the date 20
Business Days following receipt of such Loss Proceeds by delivering a
certificate of an Authorized Officer of the Company to that effect and
specifying that portion of such Loss Proceeds that the Company intends to
use for such Restoration. Upon receipt of such notice, the Depositary Bank
will segregate in the Restoration Sub-Account such portion of the Loss
Proceeds. Thereafter, the Company shall, upon request to the Depositary
Bank, be permitted to withdraw from time to time all and any portion of
such amounts from the Restoration Sub-Account to make expenditures in
respect of such Restoration. Upon receipt of each such request, the
Depositary Bank shall withdraw and transfer from the Restoration
Sub-Account and shall remit to the Company (or such payee(s) as the Company
shall direct) the amount specified in such request, and (if remitted to the
Company), the Company shall remit to the relevant payees the amounts the
Company receives. Upon completion of such Restoration, the Company shall
advise the Depositary Bank and the Collateral Agent thereof, and the
Depositary Bank shall transfer any portion of such amount remaining in the
Restoration Sub-Account in respect of the relevant Event of Loss to the
Loss Proceeds Account for application to a prepayment of the Loans to the
extent required by Section 2.09(d) of the Credit Agreement or otherwise as
provided in this Section.
(iii) Notwithstanding anything herein to the contrary, any amounts
payable by the Company or any of its Subsidiaries with respect to fees,
costs, taxes or other amounts specified in determining the Net Available
Proceeds of any Event of Loss shall, upon a written request of the Company,
be remitted to the Company for payment to the applicable payee(s) thereof.
For avoidance of doubt, if any such amount is deducted from proceeds to the
Company or any of its Subsidiaries before the receipt thereof, it shall not
be a violation of Section 4.02(a).
SECTION 4.03. Prepayment Account.
(a) Deposits into Prepayment Account. The Company agrees, and will
take all necessary action to ensure, that the following amounts shall be
deposited directly into the Prepayment Account:
(i) all of the Net Available Proceeds of any Disposition (other
than an Excluded Disposition) received by the Company or any of its
Subsidiaries;
(ii) all of the Net Available Proceeds of any Equity Issuance
resulting from the exercise of the Reserve Capital Call Obligations, and
50% of the Net Available Proceeds of any other Equity Issuance (other than
an Excluded Equity Issuance) received by the Company or any of its
Subsidiaries (including, without limitation, all amounts paid (or deemed
paid) by Iridium LLC as a capital contribution in the Company in respect of
the Reserve Capital Call Obligations);
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(iii) 50% of the Net Available Proceeds of any Debt Incurrence
(other than an Excluded Debt Incurrence) received by the Company or any of
its Subsidiaries;
(iv) all proceeds of any Project Document Claim;
(v) Excess Cash Flow which is required to be prepaid pursuant to
Section 2.09(f) of the Credit Agreement; and
(vi) all other amounts collected or received by the Collateral
Agent or by any other Secured Party in respect of any exercise of Security
Agreement Remedies with respect to the Collateral under the Security
Documents.
(b) Disbursements from Prepayment Account.
(i) The Depositary Bank shall, subject to Section 5.04, from time
to time upon instructions of the Collateral Agent transfer the amounts on
deposit in the Prepayment Account to the Administrative Agent for
application to a prepayment of the Loans at the times and in the amounts in
accordance with Section 2.09 of the Credit Agreement.
(ii) Subject to Section 5.04, the Depositary Bank shall, at the
written instructions of an Authorized Officer of the Collateral Agent,
transfer to the General Receipt & Disbursement Account any amounts
deposited in the Prepayment Account to the extent (x) not required to be
applied to the prepayment of outstanding Loans pursuant to Section 2.09 of
the Credit Agreement and (y) not used for the Restoration of property
affected by the relevant Event of Loss or for fees, costs, taxes or other
such amounts, as permitted under Section 4.02(b)(iii), as determined by the
Collateral Agent.
(iii) Notwithstanding anything herein to the contrary, any amounts
payable by the Company or any of its Subsidiaries with respect to fees,
costs, taxes or other amounts specified in determining the Net Available
Proceeds, as the case may be, of any Disposition, Equity Issuance, Debt
Incurrence or Project Document Claim shall, upon the written request of an
Authorized Officer of the Company, be remitted to the Company for payment
to the applicable payee(s) thereof. For avoidance of doubt, if any such
amount is deducted from proceeds to the Company or any of its Subsidiaries
before the receipt thereof, it shall not be a violation of Section 4.03(a).
(iv) Notwithstanding anything herein to the contrary, any amounts
referred to in clause (v) of paragraph (a) above shall be applied to the
payment of the Secured Obligations (as defined in the relevant Security
Documents) in accordance with the terms of the respective Security Document
under which such amounts were received as directed by the Collateral Agent,
and upon receiving such direction the Depositary Bank shall pay such amount
as so directed.
(c) Instructions to Project Parties. The Company hereby
acknowledges that it has irrevocably instructed each Transaction Party that
is a party to each Principal Project Document to make all payments that may
be made to or received by the Company thereunder directly to the Depositary
Bank for deposit into the Prepayment Account and that such payment will be
credited to the Prepayment Account in accordance with the terms of this
Agreement.
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ARTICLE V
OTHER ACCOUNT MATTERS
SECTION 5.01. Remittances to the Company or the Collateral Agent.
(a) In the event that any payments or other amounts required
pursuant to this Agreement to be deposited directly into one of the Accounts are
remitted instead to the Company or any of its Subsidiaries, the Company shall
(or shall cause any such Subsidiary to) promptly remit such payments or other
amounts, in the form received, with any necessary endorsements, to the
Depositary Bank for deposit into the relevant Account as provided herein and,
pending such remittance to the Depositary Bank, the Company shall (or shall
cause any such Subsidiary to) segregate such payments and other amounts from all
other funds of the Company (or such Subsidiary, as the case may be) and hold the
same in trust for the Secured Parties.
(b) In the event that any payments or other amounts required
pursuant to this Agreement to be deposited directly into one of the Accounts are
remitted instead to the Collateral Agent, the Collateral Agent shall promptly
remit such payments or other amounts, in the form received, with any necessary
endorsements, to the Depositary Bank for deposit to the relevant Account as
provided herein.
SECTION 5.02. Right of Withdrawal. Except as specifically set
forth in this Agreement, the Company shall have no right of withdrawal in
respect of any of the Accounts.
SECTION 5.03. Permitted Investments.
(a) Moneys held in any Account shall be invested and reinvested in
Permitted Investments at the written direction (which may be in the form of a
standing instruction) of an Authorized Officer of the Company; provided,
however, that at any time when (i) the Depositary Bank shall have received
written notice from the Collateral Agent that an Event of Default shall have
occurred and be continuing or (ii) an Authorized Officer of the Company has not
timely furnished such a written direction or, after a request by the Depositary
Bank, has not so confirmed a standing instruction to the Depositary Bank, the
Depositary Bank shall invest such moneys only in Permitted Investments described
in clause (e) of the definition thereof that have a maturity of 30 days or less.
Any written direction of an Authorized Officer of the Company with respect to
the investment or reinvestment of moneys held in any Account shall direct
investment or reinvestment only in Permitted Investments. All Permitted
Investments shall be credited to the relevant Account and shall comply with
Section 2.02(b)(v).
(b) Earnings on Permitted Investments held in each Account shall
be deposited upon receipt in the General Receipt & Disbursement Account as
provided in Section 4.01(a).
(c) The Depositary Bank shall have no liability for any loss
resulting from any investment contemplated by this Section other than by reason
of its bad faith, intentional misconduct or gross negligence.
(d) The Depositary Bank may sell or liquidate any Permitted
Investment (without regard to maturity date) whenever the Depositary Bank
reasonably deems it necessary to make
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any deposit, transfer or distribution required by this Agreement (using
reasonable efforts to minimize the costs or losses resulting from such
liquidation), provided that the Depositary Bank shall not be liable to any
Person for any loss suffered because of such sale or liquidation or by any delay
in liquidation other than by reason of its bad faith, intentional misconduct or
gross negligence.
(e) For purposes of any income tax payable on account of any
income or gain on an investment, such income or gain shall be for the account of
the Company.
(f) Each of the parties hereto acknowledges that in connection
with Permitted Investments of the type described in clause (c) of the definition
of "Permitted Investments" for which the Depositary Bank or an affiliate of the
Depositary Bank serves as an investment advisor, administrator, shareholder,
servicing agent and/or custodian or subcustodian (i) the Depositary Bank or an
affiliate of the Depositary Bank charges and collects fees and expenses from
such funds for services rendered, (ii) the Depositary Bank charges and collects
fees and expenses for services rendered pursuant to the standard terms and
conditions and (iii) services performed for such Permitted Investments and
pursuant to the standard terms and conditions may converge at any time. Each of
the parties hereto hereby specifically authorizes the Depositary Bank or an
affiliate of the Depositary Bank to charge and collect all fees and expenses
from such funds for services rendered to such funds, in addition to any fees and
expenses the Depositary Bank may charge and collect for services rendered
pursuant to the standard terms and conditions.
SECTION 5.04. Defaults. Notwithstanding anything contained in this
Agreement to the contrary, upon receiving notice from the Collateral Agent of
the occurrence and during the continuation of an Event of Default, the
Depositary Bank shall accept all notices and instructions required to be given
to the Depositary Bank pursuant to the terms of this Agreement only from the
Collateral Agent and not from any other Person, and, notwithstanding anything
herein to the contrary, the Depositary Bank shall not withdraw, transfer, pay or
otherwise distribute any moneys in any of the Accounts except pursuant to such
notices and instructions from the Collateral Agent (it being understood that,
upon and during the continuance of an Event of Default, the Collateral Agent may
direct any or all of the moneys in the Accounts to be applied to pay when due
any of the Secured Obligations). No amounts from time to time held in each
Account shall constitute payment of any Indebtedness or any other obligation of
the Company until applied as herein provided.
SECTION 5.05. Identification of Amounts. In the event the
Depositary Bank receives moneys without adequate identification or adequate
instruction with respect to the proper Account in which such moneys are to be
deposited, the Depositary Bank shall deposit such moneys into the General
Receipt & Disbursement Account and segregate such moneys from all other amounts
on deposit in the General Receipt & Disbursement Account and notify the Company
of the receipt of such moneys. Upon receipt of instructions of an Authorized
Officer of the Company as to identification of such moneys, the Depositary Bank
shall transfer such moneys from the General Receipt & Disbursement Account to
the Account as so instructed by the Company.
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SECTION 5.06. Other Transfers. If at any time any amount required
hereby to be deposited into a particular Account is deposited into another
Account, the Depositary Bank shall have the right to transfer such amount to the
proper Account.
SECTION 5.07. Account Balance Statements. The Depositary Bank
shall, on a monthly basis, provide to the Collateral Agent and the Company,
account statements in respect of each of the Accounts, sub-accounts and amounts
segregated in any of the Accounts or sub-accounts. Such account statement shall
also include deposits, withdrawals and transfers from and to each Account and
sub-account and any segregated amounts. At such other times as the Collateral
Agent or the Company may from time to time reasonably request (but not more
frequently than once each week unless an Event of Default shall have occurred
and is continuing), the Depositary Bank shall provide written informal account
information regarding (a) cash and other items credited to each of the Accounts,
sub-accounts and, to the extent reasonably available, amounts segregated in any
of the Accounts or sub-accounts and (b) deposits, withdrawals and transfers from
and to any Account, sub-account and, to the extent reasonably available,
segregated amounts.
ARTICLE VI
THE DEPOSITARY BANK
SECTION 6.01. Tax Identification. The Company shall on the
signature page of this Agreement provide the Depositary Bank with its Tax
Identification Number (TIN) as assigned by the Internal Revenue Service. All
interest or other income earned hereunder shall be allocated and paid as
provided herein and reported by the recipient to the Internal Revenue Service as
having been so allocated and paid.
SECTION 6.02. Action.
(a) The Depositary Bank may rely and shall be protected in acting
or refraining from acting upon any written notice, instruction or request
furnished to it hereunder (or, as contemplated in this Agreement, any telephonic
notice, instruction or request) and believed by it to be genuine and to have
been signed or presented by an Authorized Officer of the proper party or
parties. The Depositary Bank shall be under no duty to inquire into or
investigate the validity, accuracy or content of any such notice, instruction or
request. The Depositary Bank shall have no duty to solicit any payments which
may be due it hereunder.
(b) The Depositary Bank shall not be liable for any action taken
or omitted by it in good faith unless a court of competent jurisdiction
determines that the Depositary Bank's gross negligence, intentional misconduct
or bad faith was the primary cause of any loss to any such party. In the
administration of the Accounts hereunder, the Depositary Bank may execute any of
its powers and perform its duties hereunder directly or through agents or
attorneys and may consult with counsel, accountants and other skilled persons to
be selected and retained by it. The Depositary Bank shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
advice or opinion of any such counsel, accountants or other skilled persons.
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(c) The duties and responsibilities of the Depositary Bank
hereunder shall be determined solely by the express provisions of this
Agreement, and no other or further duties or responsibilities shall be implied.
The Depositary Bank shall not have any liability under, nor duty to inquire into
the terms and provisions of, any agreement or instructions, other than as
provided in the Agreement.
(d) In the event that the Depositary Bank shall be uncertain as to
its duties or rights hereunder or shall receive notice, instructions or requests
from any party hereto which, in its opinion, conflict with any of the provisions
of this Agreement, it shall be entitled to refrain from taking any action and
its sole obligation shall be to keep safely all property held by it until it
shall be directed otherwise in writing by all of the other parties hereto or by
a final order or judgment of a court of competent jurisdiction.
SECTION 6.03. Resignation. Subject to the appointment and
acceptance of a successor Depositary Bank, the Depositary Bank may resign and be
discharged from its duties or obligations hereunder by giving notice in writing
to the Collateral Agent and the Company of such resignation specifying a date
when such resignation shall take effect. Upon receipt of such notice, the
Collateral Agent shall have the right to designate a successor Depositary Bank
which shall be a Lender and a bank with an office in New York, New York and a
combined capital and surplus of at least $500,000,000, with the prior consent of
the Company (which consent shall not be unreasonably withheld). If no successor
shall have been so designated and shall have accepted such designation within 30
days of the retiring Depositary Bank's giving notice of such resignation, the
retiring Depositary Bank may appoint its successor provided such appointed
successor is a Lender and a bank with an office in the New York, New York with a
combined capital surplus of at least $500,000,000. Upon acceptance by a
successor Depositary Bank of its appointment hereunder, the retiring Depositary
Bank shall be discharged from its duties and obligations hereunder. In
connection with its resignation hereunder, the Depositary Bank shall have the
right to withhold an amount equal to the amount due and owing to the Depositary
Bank plus any costs and expenses the Depositary Bank shall reasonably believe
may be incurred by the Depositary Bank in connection with its resignation. Upon
the acceptance of any appointment as Depositary Bank hereunder by the successor
Depositary Bank, (a) such successor Depositary Bank shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Depositary Bank, and the retiring Depositary Bank shall be discharged
from its duties and obligations hereunder and (b) the retiring Depositary Bank
shall promptly transfer all Accounts within its possession or control to the
possession or control of the successor Depositary Bank and shall execute and
deliver such notices, instructions and assignments as may be necessary or
desirable to transfer the rights of the Depositary Bank with respect to the
Accounts to the successor Depositary Bank.
SECTION 6.04. Compensation. The Company hereby agrees to (i) pay
the Depositary Bank upon execution of this Agreement reasonable compensation for
the services to be rendered hereunder, as described in a written schedule
provided from time to time by the Depositary Bank to the Company and (ii) pay or
reimburse the Depositary Bank upon request for all expenses, disbursements and
advances, including reasonable attorney's fees, incurred or made by it in
connection with the preparation, execution, performance, delivery modification,
and termination of this Agreement.
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SECTION 6.05. Indemnification. The Company hereby agrees to
indemnify the Depositary Bank for, and to hold it harmless against, any loss,
liability or expense arising out of or in connection with this Agreement and
carrying out its duties hereunder, including the costs and expenses of defending
itself against any claim of liability, except for costs and expenses resulting
from the gross negligence, intentional misconduct or bad faith of the Depositary
Bank. Anything in this Agreement to the contrary notwithstanding, in no event
shall the Depositary Bank be liable for special, indirect or consequential loss
or damage of any kind whatsoever (including but not limited to lost profits),
even if the Depositary Bank has been advised of the likelihood of such loss or
damage and regardless of the form of action.
SECTION 6.06. Transfer Instructions.
(a) In the event funds transfer instructions are given, whether in
writing, by telecopier or otherwise, the Depositary Bank is authorized to seek
confirmation of such instructions by telephone call-back to an Authorized
Person, and the Depositary Bank may rely upon the confirmations of anyone
purporting to be the person or persons so designated. The persons and telephone
numbers for call-backs may be changed only in a writing actually received and
acknowledged by the Depositary Bank. The parties to this Agreement acknowledge
that such security procedure is commercially reasonable.
(b) It is understood that, with respect to any funds transfer, the
Depositary Bank may rely solely upon any account numbers or similar identifying
number provided by either of the other parties hereto to identify (i) the
intended payee, (ii) such payee's bank, or (iii) an intermediary bank through
which such funds transfer is to be made. The Depositary Bank may apply any of
the funds for any payment order it executes using any such identifying number,
even where its use may result in a person other than the intended payee being
paid, or the transfer of funds to a bank other than the intended payee's bank or
an intermediary bank designated.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. No Waiver. No failure on the part of the Collateral
Agent or any of its agents to exercise and no delay in exercising, and no course
of dealing with respect to, any right, power or remedy hereunder shall operate
as a waiver thereof, and no single or partial exercise by the Collateral Agent
or any of its agents of any right, power or remedy hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. The remedies provided herein are cumulative and are not exclusive of any
remedies provided by law.
SECTION 7.02. Notices. All notices, requests and other
communications provided for herein (including, without limitation, any
modifications of, or waivers or consents under, this Agreement) shall be given
or made in writing (including, without limitation, by telex or telecopy) and
delivered (a) if to the Depositary Bank, the Company or the Collateral Agent, at
the "Address for Notices" specified beneath its name on the signature page
hereof or (b) as to any
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party, at such other address as shall be designated by such party in a notice to
each other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by telex
or telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 7.03. Amendments, Etc. The terms of this Agreement may be
waived, altered or amended only by an instrument in writing duly executed by the
Company, the Collateral Agent and the Depositary Bank. Any such amendment or
waiver shall be binding upon the Collateral Agent, each other Secured Party and
the Company.
SECTION 7.04. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the respective successors and assigns
of the Company, the Collateral Agent and the Depositary Bank; provided, however,
that the Company shall not assign or transfer its rights hereunder without the
prior written consent of the Collateral Agent.
SECTION 7.05. Captions. The caption and section headings used
herein are for convenience of reference only, are not part of this Agreement and
shall not affect the construction of, or be taken into consideration in
interpreting, this Agreement.
SECTION 7.06. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract.
SECTION 7.07. Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New York, except as
required by mandatory provisions of law and except to the extent that the
validity or perfection of the lien and security interest hereunder, or the
remedies hereunder, are governed by the law of any jurisdiction other than the
State of New York. Regardless of any provision in any other agreement, for
purposes of the UCC, the "securities intermediary's jurisdiction" of the
Depositary Bank with respect to the Accounts is the State of New York.
SECTION 7.08. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 7.09. No Third Party Beneficiaries. The agreements of the
parties hereto are solely for the benefit of the Company, the Collateral Agent,
the Depositary Bank and the other Secured Parties, and no other Person
(including, without limitation, any other Credit
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Party, any contractor, subcontractor, supplier or materialman furnishing
supplies, goods or services to or for the benefit of the Project or any other
creditor of the Company or any of its Subsidiaries) shall have any rights
hereunder.
SECTION 7.10. Agents and Attorneys-in-Fact. The Collateral Agent
may employ agents and attorneys-in-fact in connection herewith and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith.
SECTION 7.11. Severability. Any provision of this Agreement held
to be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 7.12. Reinstatement. This Agreement and any Lien created
hereunder shall automatically be reinstated if and to the extent that for any
reason any payment by or on behalf of the Company in respect of the Secured
Obligations is rescinded or must otherwise be restored by any holder of the
Secured Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise.
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IN WITNESS WHEREOF, the parties hereto have caused this Deposit,
Disbursement and Account Control Agreement to be duly executed and delivered as
of the day and year first above written.
IRIDIUM OPERATING LLC
By
-------------------------------
Name:
Title:
Address for Notices:
Iridium Operating LLC
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: General Counsel
(Telecopy No.: 202-408-3761)
Tax Identification No.: ▇▇-▇▇▇-▇▇▇▇
Depositary Agreement
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▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ BANK,
as Collateral Agent
By
--------------------------
Name:
Title:
Address for Notices:
The Chase Manhattan Bank
Loan and Agency Services Group
1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Winslowe Ogbourne
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Depositary Agreement
254
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▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ BANK,
as Depositary Bank
By
----------------------------
Name:
Title:
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇/8178
Depositary Agreement
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EXHIBIT G
[FORM OF MOTOROLA CONSENT]
MOTOROLA CONSENT
CONSENT AND AGREEMENT dated as of December __, 1998 among:
MOTOROLA, INC., a Delaware corporation ("Motorola"); IRIDIUM OPERATING LLC, a
Delaware limited liability company ("Iridium"); and THE CHASE MANHATTAN BANK
("Chase"), as administrative agent for the lenders or other financial
institutions or entities party, as lenders, to the Secured Credit Agreement
referred to below (the "Lenders") (in such capacity, together with its
successors in such capacity, the "Administrative Agent"), and as collateral
agent for the Lenders under the Security Documents (in such capacity, together
with its successors in such capacity, the "Collateral Agent").
Iridium, certain lenders (each, a "Lender" and, collectively, the
"Lenders"), the Collateral Agent, Chase Securities Inc. and Barclays Bank PLC,
as Global Lead Arrangers (collectively, the "Global Lead Arrangers"), the
Administrative Agent, and Barclays Bank PLC as the Documentation Agent are
parties to a certain Senior Secured Credit Agreement dated as of December 23,
1998 (as amended and modified and in effect from time to time, the "Secured
Credit Agreement"), providing, subject to the terms and conditions thereof, for
loans to be made by the Lenders to Iridium in an aggregate principal amount not
exceeding $800,000,000.
To induce the Lenders to enter into the Secured Credit Agreement
and to extend credit thereunder, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Motorola and
Iridium have agreed to enter into this Agreement, and Motorola has agreed to
enter into the Motorola Pledge Agreement, for the benefit of the Agents and the
Lenders. Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions and Other Terms. Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned thereto
in the Secured Credit Agreement. As used herein, the following terms shall have
the following meanings (all terms defined in this Section or in other provisions
of this Agreement to have the same meanings when used in the plural and vice
versa):
"FCC License" means the authorization granted by the FCC in
respect of the construction, launch and operation of the Iridium System, as set
forth in the FCC's Orders and Authorizations DA 95-131, released January 31,
1995, DA 95-372, released February 28, 1995, FCC 96-279, released June 27, 1996
and DA 96-1789, released October 30, 1996.
"Material Motorola Domestic Subsidiary" means, at any time, any
Motorola Domestic Subsidiary that as of such time meets the definition of a
"significant subsidiary" contained as of the date hereof in Regulation S-X of
the SEC.
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"Motorola Assigned Agreements" means, collectively, (a) the Space
System Contract, (b) the Terrestrial Network Development Contract, (c) the O&M
Contract and (d) the MOU Agreements.
"Motorola Domestic Subsidiary" means any Subsidiary of Motorola,
except any such Subsidiary (a) that neither transacts any substantial business
nor regularly maintains any substantial portion of its fixed assets within the
United States of America or (b) which is engaged primarily in financing
operations of Motorola or its Subsidiaries outside the United States of America.
"Motorola Subordinated Claims" means (a) Iridium's financial
obligations in respect of any and all claims and rights by Motorola against
Iridium arising as a result of Motorola's performance of its obligations under
any guarantee issued by Motorola in respect of Indebtedness of Iridium permitted
under Section 7.01(a), (b), (c),(d) or (k) of the Secured Credit Agreement
(including, without limitation, (i) the Guarantee Agreement executed and
delivered by Motorola in connection with the Motorola Guaranteed Credit
Agreement and (ii) the Motorola Guarantee), whether by subrogation,
contribution, reimbursement or otherwise, and including, without limitation, any
and all monetary obligations owing by Iridium in respect of any of the foregoing
under the MOU Agreements (but excluding, for avoidance of doubt, the obligations
under the Agreement Regarding Guarantee relating to compensation in the form of
equity interests of Iridium LLC or IWCL or warrants therefor), and (b) any and
all obligations owing by Iridium to Motorola in respect of any Motorola Vendor
Financing (other than with respect to amounts covered by clause (c) of the
definition of Motorola Vendor Financing in the Secured Credit Agreement).
"Secured Credit Agreement" has the meaning assigned to such term
in the preamble of this Agreement.
"Secured Credit Documents" means the Senior Credit Agreement and
any and all guarantees, security agreements, pledge agreements, mortgages, and
other instruments and agreements providing for or evidencing Senior Bank Debt,
in each case as modified or supplemented and in effect from time to time.
"Security Agreement Remedies" mean the remedies of the Collateral
Agent under the Security Agreement.
"Senior Bank Debt" means the following obligations of Iridium:
(a) all principal of the loans outstanding under the Secured
Credit Agreement, all interest thereon (including any interest accruing
after the date of any filing by Iridium of any petition in bankruptcy or
the commencing of any bankruptcy, insolvency or similar proceedings with
respect to Iridium whether or not the same is allowed as a claim in any
such proceeding) and all other amounts outstanding under the Secured
Credit Agreement and the other Secured Credit Documents, including,
without limitation, all expenses, indemnities, premiums, penalties and
fees payable by Iridium from time to time thereunder;
Motorola Consent
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(b) all obligations of Iridium owing from time to time to any
holder of Senior Bank Debt of the type described in clause (a) above, or
any refinancing, replacement or refunding thereof permitted under clause
(c) below, in respect of any Hedging Agreement entered into between
Iridium and such holder (or any Affiliate thereof); and
(c) any and all refinancings, replacements or refundings of any
or all of the foregoing amounts effected through one or more secured
credit facilities having a maturity not later than July 15, 2005 and
(together with all other secured debt for borrowed money of Iridium) not
exceeding $1,700,000,000 in aggregate principal amount.
"Senior Bank Debt Representative" means (a) the Administrative
Agent from time to time under the Secured Credit Agreement (which, as of the
date hereof, is Chase) and (b) at any time following the refinancing,
replacement or refunding of the Secured Credit Agreement, the entity acting in
the capacity as administrative agent for the lenders (or exercising the
equivalent functions) under such refinancing, replacement or refunding.
"Senior Credit Agreement" means the Secured Credit Agreement
and/or any refinancing, refunding, extension or renewal thereof, whether in
whole or part and whether or not with any of the lenders then party to the
outstanding Senior Credit Agreement, in each case as amended or modified and in
effect from time to time.
"Space Segment" has the definition provided in the Space System
Contract.
"SSL" means Space System License, Inc., a direct wholly owned
Subsidiary of Motorola.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company or other entity of which at least a
majority of the securities or other ownership interests having by the terms
thereof ordinary voting power to elect a majority of the board of directors or
other persons performing similar functions of such corporation, partnership,
limited liability company or other entity (irrespective of whether or not at the
time securities or other ownership interests of any other class or classes of
such corporation, partnership, limited liability company or other entity shall
have or might have voting power by reason of the happening of any contingency)
is at the time directly or indirectly owned or controlled by such Person or one
or more Subsidiaries of such Person or by such Person and one or more
Subsidiaries of such Person. Notwithstanding the foregoing, in no event shall
Iridium be a Subsidiary of Motorola.
SECTION 1.02. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or
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otherwise modified, including an amendment and restatement thereof, but subject
to any restrictions on such amendments, supplements or modifications set forth
herein, (b) any reference herein to any Person shall be construed to include
such Person's successors and assigns or, in the case of any Governmental
Authority, any successor or other entity that performs equivalent functions in
whole or in part, (c) the words "herein", "hereof" and "hereunder", and words of
similar import, shall be construed to refer to this Agreement in its entirety
and not to any particular provision hereof, (d) all references herein to
Articles, Sections and Schedules shall be construed to refer to Articles and
Sections of, and Schedules to, this Agreement and (e) the words "asset" and
"property" shall be construed to have the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Motorola represents and warrants to the Lenders and the Agents
that:
SECTION 2.01. Corporate Existence. Motorola (a) is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware; (b) has all requisite corporate or other power, and has all
material governmental licenses, authorizations, consents and approvals
necessary, to own its assets and carry on its business as now being or as
proposed to be conducted; and (c) is qualified to do business and is in good
standing in all jurisdictions in which the nature of the business conducted by
it makes such qualification necessary and where failure so to qualify could
reasonably be likely to (either individually or in the aggregate) have a
material adverse effect on the ability of Motorola to perform any of its
obligations under the Credit Documents and the Principal Project Documents to
which it is a party.
SECTION 2.02. Financial Condition. Motorola has heretofore
furnished to each of the Lenders the consolidated balance sheet of Motorola and
its consolidated Subsidiaries as at December 31, 1997 and the related statements
of consolidated earnings, stockholders' equity and cash flows of Motorola and
its consolidated Subsidiaries for the fiscal year ended on said date, with the
opinion thereon of KPMG Peat Marwick LLP, and the unaudited consolidated balance
sheet of Motorola and its Subsidiaries as at the end of the third fiscal quarter
of Motorola's 1998 fiscal year and the related statements of consolidated
earnings, stockholders' equity and cash flows of Motorola and its consolidated
Subsidiaries for the nine-month period ended on such date. All such financial
statements present fairly, in all material respects, the financial condition of
Motorola and its consolidated Subsidiaries as at said dates and the results of
their operations for the fiscal year and nine-month period ended on said dates
(subject, in the case of such financial statements as at the end of such
nine-month period to normal year-end audit adjustments), all in conformity with
generally accepted accounting principles. Since December 31, 1997, there has
been no material adverse change in the consolidated business, operations or
financial condition taken as a whole of Motorola and its consolidated
Subsidiaries from that set forth in said financial statements as at said date.
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SECTION 2.03. Litigation. Except as disclosed in Motorola's
Report on Form 10-K filed with the SEC for the fiscal year ended December 31,
1997 or in Motorola's Reports on Form 10-Q filed with the SEC during 1998 prior
to the date hereof, each of which has been delivered to the Lenders prior to the
date hereof, there are no legal or arbitral proceedings, or any proceedings by
or before any governmental or regulatory authority or agency, now pending or (to
the knowledge of Motorola) threatened against Motorola or any of the Material
Motorola Domestic Subsidiaries which if adversely determined, (either
individually or in the aggregate) could reasonably be likely to have a material
adverse effect on the ability of Motorola to perform any of its obligations
under the Credit Documents and the Principal Project Documents to which it is a
party.
SECTION 2.04. No Breach. None of the execution and delivery of
any of the Motorola Agreements, the consummation of the transactions
contemplated thereby or compliance with the terms and provisions thereof will
conflict with or result in a breach of, or require any consent under, the
charter or by-laws of Motorola, or any applicable law or regulation or any
order, writ, judgment, decree, determination or award having applicability to
Motorola or any of its Subsidiaries, or any agreement or instrument to which
Motorola or any of the Material Motorola Domestic Subsidiaries is a party, or by
which any of them or any of their respective property is bound or to which any
of them is subject, or constitute a default under any such agreement or
instrument.
SECTION 2.05. Action. Motorola has all necessary corporate power,
authority and legal right to execute, deliver and perform each of its
obligations under the Motorola Agreements and the Motorola Assigned Agreements.
The execution, delivery and performance by Motorola of each of the Motorola
Agreements and the Motorola Assigned Agreements, and the consummation of the
transactions contemplated thereby, have been duly authorized by all necessary
corporate action on its part. Each of the Motorola Agreements and the Motorola
Assigned Agreements has been duly and validly executed and delivered by Motorola
and constitutes its legal, valid and binding obligation, enforceable against it
in accordance with its respective terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of
general applicability affecting the enforcement of creditors' rights.
SECTION 2.06. Approvals. No authorizations, approvals or consents
of, and no filings or registrations with, any governmental or regulatory
authority or agency, any securities exchange or any other Person are necessary
for the execution, delivery or performance by Motorola of any of the Motorola
Agreements or the Motorola Assigned Agreements or for the legality, validity or
enforceability hereof or thereof, except that the exercise of remedies under the
Motorola Pledge Agreement may require prior approval of the FCC.
SECTION 2.07. Motorola Assigned Agreements. As of the date
hereof, Motorola is not in default under any of its material covenants or
obligations under the Motorola Assigned Agreements and each of the Motorola
Assigned Agreements is in full force and effect. Iridium or Motorola has
furnished to the Administrative Agent true and complete copies of each of the
Motorola Assigned Agreements as in effect on the date hereof. As of the date
hereof, no event or condition exists which would either immediately or with the
passage of any applicable grace period or giving of notice, or both, enable
Motorola to terminate, or suspend performance
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of its obligations under, any of the Motorola Assigned Agreements, except (i)
for amounts to be paid to Motorola contemporaneously with the initial loans
under the Secured Credit Agreement and the Motorola Guaranteed Credit Agreement
and (ii) as identified in Schedule 1.
SECTION 2.08 No Motorola Default. No Motorola Default has
occurred and is continuing.
SECTION 2.09 FCC License. The FCC License is validly issued, as
of the date hereof in the name of, and at all times prior to the transfer
thereof to Iridium pursuant to the Space System Contract will be held by, SSL.
Except as described in Schedule 2, the FCC License is a final and non-appealable
order of the FCC and in full force and effect, and Motorola is in compliance
with all material terms and conditions applicable to, or set forth in, the FCC
License and with all material provisions of any Government Rule applicable
thereto. Except as set forth in Schedule 2, there is not now pending or, to the
knowledge of Motorola, threatened any petition, complaint, objection (whether
formal or informal), investigation, or any other proceeding before the FCC or
any other Government Authority of competent jurisdiction relating to the FCC
License or the Iridium System.
ARTICLE III
CONSENT AND AGREEMENT
Motorola hereby acknowledges and agrees:
SECTION 3.01. Consent to Assignment. Motorola hereby acknowledges
notice and receipt of the Security Agreement and consents to the assignment by
Iridium of all its rights in and under each of the Motorola Assigned Agreements
pursuant to the Security Agreement and any and all moneys payable by Motorola to
Iridium under any of the Motorola Assigned Agreements.
SECTION 3.02. Exercise of Iridium Rights. In connection with any
exercise by the Collateral Agent of the Security Agreement Remedies, the
Collateral Agent shall be entitled to exercise any and all rights of Iridium
under each of the Motorola Assigned Agreements in accordance with their
respective terms, and Motorola shall comply in all respects with such exercise.
Without limiting the foregoing, in connection with the exercise by the
Collateral Agent of the Security Agreement Remedies, the Collateral Agent shall
have the full right and power to enforce directly against Motorola all
obligations of Motorola owing to Iridium under each Motorola Assigned Agreement
and otherwise to exercise all remedies of Iridium thereunder and to make all
demands and give all notices and make all requests required or permitted to be
made by Iridium under each Motorola Assigned Agreement. The Collateral Agent
shall have the right, but not the obligation, to cure all defaults of Iridium
and to pay all sums owing by Iridium under any Motorola Assigned Agreement in
accordance with this Agreement.
SECTION 3.03. Actions Affecting the Motorola Assigned Agreements.
Motorola will not, without the prior written consent of the Collateral Agent,
(i) cancel or terminate, or suspend performance under, or exercise any right to
consent to or accept any cancellation, termination or suspension of, any
Motorola Assigned Agreement, unless prior
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thereto Motorola shall have delivered to the Collateral Agent written notice
stating that it intends to take such action on a date not less than 30 days
after the date of such notice, specifying the nature of the default or other
event under such Motorola Assigned Agreement entitling Motorola to take such
action (and, in the case of a payment default by Iridium, specifying the amount
thereof) and permitting the Collateral Agent to cure such payment default by
making a payment equal to the amount in default or by performing or causing to
be performed any other obligation in default, (ii) transfer, sell, assign,
delegate or otherwise dispose of any part of its interests in any Motorola
Assigned Agreement or (iii) petition, request or take any other legal or
administrative action which seeks, or may reasonably be expected, to rescind,
terminate, suspend, amend or modify any Motorola Assigned Agreement or any part
thereof. In furtherance of clause (i) of the immediately preceding sentence,
Motorola agrees that, notwithstanding anything contained in any Motorola
Assigned Agreement to the contrary, upon the occurrence of a default by Iridium
under such Motorola Assigned Agreement entitling Motorola to cancel or terminate
such Motorola Assigned Agreement or to suspend performance thereunder, Motorola
will not take any action to cancel or terminate, or suspend performance under,
such Motorola Assigned Agreement if, within a 30-day period after the date on
which the Collateral Agent shall have received notice of such default from
Motorola, the Collateral Agent commences steps to cure such default and/or
otherwise to institute enforcement proceedings to acquire Iridium's interest in
such Motorola Assigned Agreement or the Iridium Business and thereafter the
Collateral Agent diligently pursues such steps or proceedings and all payment
defaults of Iridium under such Motorola Assigned Agreement have been cured
within such 30-day period. Effective upon any transfer of Iridium's interest in
such Motorola Assigned Agreement to any other Person, Motorola will grant the
relevant transferee a reasonable period of time to cure such default (but, in no
event with respect to any payment default, exceeding a maximum of 30 days after
receipt of notice of such payment default by the Collateral Agent, as
contemplated above). Except as provided in Section 3.05, no curing or attempt to
cure any of Iridium's defaults under any Motorola Assigned Agreement shall be
construed as an assumption by the Collateral Agent or any other Secured Party of
any covenants, agreements or obligations of Iridium under such Motorola Assigned
Agreement and neither the Collateral Agent nor any other Secured Party shall
have any obligation to Motorola for the performance of any obligation under any
Motorola Assigned Agreement. In connection with any cure pursuant to this
Section of Iridium's default(s) under any Motorola Assigned Agreement or any
assumption by any Person of Iridium's liabilities thereunder, only those
obligations and liabilities arising expressly under such Motorola Assigned
Agreement shall be required to be cured or assumed, as the case may be.
Notwithstanding anything in this Agreement to the contrary, no provision of this
Agreement shall be intended to restrict in any way any merger or consolidation
to which Motorola is a party or the sale of all or substantially all of the
assets of Motorola and its Subsidiaries, provided that in connection with any
such transaction in which Motorola is not the surviving entity of such
transaction, the surviving entity or purchaser, as the case may be, expressly
assumes in writing the obligations of Motorola under the Motorola Assigned
Agreements and the Motorola Agreements, as applicable. Nothing in this Section
3.03 shall be construed to (i) apply to any termination of all or part of a
Motorola Assigned Agreement upon expiration of its scheduled terms, or upon
completion or full performance of the matters covered thereby or (ii) prevent
any amendment or modification of the terms of any of the Motorola Assigned
Agreements to the extent not prohibited by clause (iii) of the first sentence of
this Section.
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SECTION 3.04. Notices. Motorola shall deliver to the
Administrative Agent at the address provided for in Section 11.01 of the Secured
Credit Agreement, or at such other address as the Administrative Agent may
designate in writing from time to time to Motorola, promptly following the
delivery thereof to Iridium, a copy of each notice from Motorola to Iridium
under any Motorola Assigned Agreement of default, termination, arbitration,
force majeure or any event giving rise to a right to terminate or cancel such
Motorola Assigned Agreement or suspend performance thereunder or of any
indemnity payment to be made by Iridium which is in an amount of at least
$2,000,000. Promptly following its receipt thereof, Motorola will deliver to the
Administrative Agent at the address specified above a copy of each notice from
Iridium to Motorola under any Motorola Assigned Agreement of default,
termination, arbitration or force majeure or of any indemnity payment to be made
by Motorola which is in an amount of at least $2,000,000. Notwithstanding
anything herein to the contrary, Motorola shall not be liable for any failure to
provide, or delay in providing, any notice or other information to the
Collateral Agent under this Section.
SECTION 3.05. Successor to Iridium's Rights. Motorola agrees
that, in connection with the exercise by the Collateral Agent of the Security
Agreement Remedies with respect to any Motorola Assigned Agreement, Motorola
shall recognize the Collateral Agent as Iridium for purposes of such Motorola
Assigned Agreement in accordance with this Agreement. In the event that the
Collateral Agent succeeds to Iridium's interests under any Motorola Assigned
Agreement in accordance with the Security Agreement, the Collateral Agent shall
assume liability for all of Iridium's obligations under such Motorola Assigned
Agreement, provided, however, that such liability shall not include any
liability for claims of Motorola against Iridium arising from Iridium's failure
to perform during the period prior to the Collateral Agent's succession to
Iridium's interests under such Motorola Assigned Agreement other than the
payments obligations of Iridium expressly provided for in such Motorola Assigned
Agreement. Except as otherwise set forth in the immediately preceding sentence,
none of the Secured Parties shall be liable for the performance or observance or
any of the obligations or duties of Iridium under any of the Motorola Assigned
Agreements, nor shall the assignment of the Motorola Assigned Agreements by
Iridium to the Collateral Agent pursuant to the Security Agreement give rise to
any duties or obligations whatsoever on the part of any of the Secured Parties
owing to Motorola. If the Collateral Agent succeeds to Iridium's interests under
any Motorola Assigned Agreement pursuant to the Security Agreement, Motorola and
the Collateral Agent shall negotiate in good faith an equitable adjustment to
the milestone and/or scheduled completion dates and/or the prices or amounts
payable thereunder to compensate Motorola for any additional costs reasonably
and necessarily incurred by Motorola following the failure of Iridium to perform
its obligations that resulted in the enforcement by the Collateral Agent of the
Security Agreement Remedies until the date on which the Collateral Agent shall
have assumed the obligations of Iridium under such Motorola Assigned Agreement.
Notwithstanding the foregoing, Motorola shall not be relieved of its obligations
to perform under any Motorola Assigned Agreement as a result of the parties'
failure to agree upon an equitable adjustment to the milestone and/or scheduled
completion dates and/or the prices or amounts payable thereunder and such
failure shall be subject to resolution in accordance with the dispute resolution
procedures set forth in such Motorola Assigned Agreement.
SECTION 3.06. Iridium Bankruptcy. In the event that (i) any
Motorola Assigned Agreement is rejected by a trustee, liquidator,
debtor-in-possession or similar entity or person in
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any bankruptcy, insolvency or other similar proceeding involving Iridium or (ii)
any Motorola Assigned Agreement is terminated as a result of any bankruptcy,
insolvency or similar proceeding involving Iridium and, if within 90 days after
such rejection, the Collateral Agent shall so request and shall certify in
writing to Motorola that it intends to perform the obligations of Iridium as and
to the extent required under such Motorola Assigned Agreement (as if it had not
been rejected or terminated, but otherwise only to the extent such obligations
would be undertaken had such person or entity succeeded to Iridium thereunder
pursuant to Section 3.07), Motorola will execute and deliver to the Collateral
Agent a new agreement amending or replacing the original affected Motorola
Assigned Agreement which shall be for the balance of the remaining term under
such affected Motorola Assigned Agreement before giving effect to such rejection
or termination and shall contain the same conditions, agreements, terms,
provisions and limitations as such affected Motorola Assigned Agreement (except
for any requirements which have been fulfilled by Iridium and Motorola prior to
such rejection or termination or which are not required to be undertaken by such
person or entity). If the Collateral Agent and Motorola enter into such a new
agreement in accordance with this Section, Motorola and the Collateral Agent
shall negotiate in good faith an equitable adjustment to the milestone and/or
scheduled completion dates and/or the prices or amounts payable thereunder to
compensate Motorola for any additional costs reasonably and necessarily incurred
by Motorola during the period from and including the date such bankruptcy,
insolvency or similar proceeding was commenced to and including the date on
which the Collateral Agent shall certify in writing that it intends to perform
the obligations of Iridium with respect to such new agreement. Notwithstanding
the foregoing provisions, Motorola shall not be relieved of its obligations to
perform under such new agreement as result of the parties' failure to agree upon
an equitable adjustment to the milestone and/or scheduled completion dates and
such failure shall be subject to resolution in accordance with the disputes
resolution procedures set forth therein. References in this Agreement to a
"Motorola Assigned Agreement" shall be deemed also to refer to the new Motorola
Assigned Agreement in replacement thereof.
SECTION 3.07. Transferees. In connection with the exercise by the
Collateral Agent of the Security Agreement Remedies, the Collateral Agent may
assign its rights and interests and the rights and interests of Iridium under
any or all of the Motorola Assigned Agreements to any other Person, provided
that such Person shall assume all of the obligations of Iridium under such
Motorola Assigned Agreement(s) and shall have obtained all Government Approvals
(if any) necessary to perform such obligations. Upon such assignment and
assumption, the Collateral Agent shall be relieved of all obligations (if any)
under such Motorola Assigned Agreement(s) arising after such assignment and
assumption. In the event that the Collateral Agent or its designee or any
transferee of the interests of the Collateral Agent in any or all of the
Motorola Assigned Agreements or otherwise in respect of the Iridium Business
shall assume or be liable under any of the Motorola Assigned Agreements (as
contemplated in Section 3.05 or 3.06), liability in respect of any and all
obligations of any such party under such Motorola Assigned Agreement shall be
limited solely to such party's interest in the Iridium Business (and any
officer, director, employee, shareholder or agent thereof shall have no
liability with respect thereto).
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SECTION 3.08. Motorola Guarantee Obligations.
(a) At any time after the occurrence and during the continuation
of any Event of Default, the Collateral Agent shall have the right to exercise
all rights, powers and remedies of Iridium under the MOU Agreements (subject to
the applicable terms and conditions thereof), including without limitation the
right to require Motorola to provide the Motorola Guarantee in a maximum amount
of $300,000,000 pursuant to Section 1(e) of the Memorandum of Understanding (but
only to the extent Motorola shall not have theretofore performed thereunder).
Motorola agrees that the Collateral Agent may exercise such rights, powers
and/or remedies directly against Motorola under such circumstances, and, so long
as any Event of Default shall be continuing and Motorola has received written
notice thereof from the Collateral Agent, Motorola agrees that it shall not
recognize the exercise by Iridium of any such right, power or remedy without the
prior written consent of the Collateral Agent.
(b) Without limiting the foregoing, Motorola agrees that upon the
occurrence of a Trigger Event, if Iridium shall fail to perform its obligations
under Section 8.09 of the Secured Credit Agreement, the Collateral Agent may
require, by written notice, Motorola to provide the Motorola Guarantee in
accordance with Section 1(e) of the Memorandum of Understanding. Motorola
agrees, upon receipt of such notice, promptly to so provide the Motorola
Guarantee. Prior to the Release Date (as defined in said Section 1(e)), the
Iridium shall have no right to require the Commitment Increase (as such term is
defined in 1(b) of the Memorandum of Understanding) for an amount exceeding
$50,000,000), except in accordance with Section 8.09(a) of the Secured Credit
Agreement.
(c) Without limiting any other provision of this Agreement,
Motorola will not amend, waive or otherwise modify, or agree to any amendment,
waiver or modification, or terminate or cancel any provision under the MOU
Agreements to the extent relating to its obligations under paragraph 1(e) of the
Memorandum of Understanding without the prior written consent of the Collateral
Agent.
(d) Motorola confirms that in accordance with Section 15 of the
Memorandum of Understanding, the Collateral Agent and the Lenders are
beneficiaries of the Memorandum of Understanding with respect to Motorola's
obligations (i) to provide the Motorola Guarantee pursuant to Section 1(e)
thereof and (ii) to agree to the deferral of up to $400,000,000 of payments
under the O&M Contract pursuant to Section 3 thereof, and as such the Collateral
Agent and/or the Lenders may enforce such obligations directly against Motorola.
(e) This Section shall terminate upon the earlier of the
Guarantee Obligation Termination Date and the Guarantee Obligation Release Date.
ARTICLE IV
SPECIAL AGREEMENTS RELATING TO
MOTOROLA ASSIGNED AGREEMENTS
Motorola hereby further acknowledges and agrees that, prior to
the transfer of the FCC License to Iridium:
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SECTION 4.01. FCC License.
(a) Without limiting the provisions of Section 3, Motorola
consents to the assignment by Iridium to the Collateral Agent of all of its
rights in and to the Space System Contract pursuant to the Security Agreement,
including, without limitation, the right of Iridium under Section 18.H of the
Space System Contract to require, subject to certain conditions set forth
therein, the transfer of the FCC License to Iridium (or a Subsidiary of Iridium
designated for that purpose) by Motorola. Iridium agrees to request a transfer
of the FCC License pursuant to said Section 18.H at the earliest time as Iridium
reasonably believes that it can satisfy the qualifications of an FCC licensee
under applicable law and FCC regulations and policies. Motorola agrees that (i)
if Iridium fails to so request a transfer (or send a notice to the Collateral
Agent stating that it believes the conditions to such request have not been
satisfied within 30 days after notice from the Collateral Agent to Iridium and
Motorola requesting Iridium to request such a transfer) or (ii) an Event of
Default shall have occurred and be continuing, the Collateral Agent shall be
entitled to enforce the rights of Iridium under said Section 18.H in accordance
with its terms and, in that connection, may request such transfer or may direct
Iridium to request such transfer, subject to the FCC approval to be jointly
applied for by the parties. Motorola agrees to comply as promptly as practicable
with any such request under said Section 18.H, whether made by Iridium or (as
authorized by this paragraph) the Collateral Agent, provided that the conditions
to such transfer set forth in said Section 18.H have been satisfied. Without
limiting the foregoing, in the event that, as a result of the exercise by the
Collateral Agent of the Security Agreement Remedies, Iridium's interest in the
Space System Contract is (or is to be) transferred to another Person, Motorola
agrees to comply with its obligation under such Section 18.H with respect to the
transfer of the FCC License and, if directed by the Collateral Agent or such
Person, to use all reasonable efforts to apply to the FCC for consent to
transfer the FCC License to such Person, subject to satisfaction of all of the
conditions set forth in said Section 18.H (and assuming any such condition
relating to Iridium shall be complied with by such Person). To the extent
Motorola is not obligated under the Space System Contract to pay for the costs
and expenses associated with any such transfer, Iridium will pay such costs and
expenses.
(b) Motorola will not, and will not permit any of its
Subsidiaries to, sell or otherwise dispose (by whatever means) of, or create or
suffer to exist any Lien on, the FCC License or the capital stock or any assets
of SSL, nor shall SSL be party to any merger or consolidation or take any action
to dissolve or liquidate itself, other than (i) a transfer of the FCC License in
accordance with Section 18.H of the Space System Contract and (ii) the creation
of the Lien on such capital stock or the FCC License pursuant to the Motorola
Pledge Agreement or this Agreement. At all times prior to such transfer of the
FCC License to Iridium, the FCC License will be held by SSL, and SSL will not
have any other assets or engage in any business or enter into any transaction
including, without limitation, the incurrence of any liabilities of any kind
whatsoever, other than the holding and ownership of the FCC License and any
activities reasonably incidental thereto.
(c) Motorola agrees that it will not take any action or omit to
take any action that could reasonably be expected to result in the material
Impairment of the FCC License, unless such action or inaction would not violate
its obligations with respect to the FCC License under Article 18 of the Space
System Contract.
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(d) If there shall be a change in law, or the rules or policies
of the FCC that would permit the granting of a security interest in the FCC
License after the date hereof and prior to the transfer of the FCC License to
Iridium pursuant to Section 18.H of the Space System Contract, upon the request
of the Collateral Agent (and at the expense of Iridium), Motorola will cause SSL
to execute and deliver all such instruments and documents, and to take such
other actions, as shall be necessary or appropriate, or as the Collateral Agent
may reasonably request, in order to create a first priority perfected security
interest in the FCC License in favor of the Collateral Agent for the benefit of
the Secured Parties.
SECTION 4.02. Intellectual Property Rights.
(a) Motorola acknowledges that in connection with the Iridium
Business Motorola has granted, and will grant, to Iridium rights in certain
intellectual property owned or held by Motorola and its Subsidiaries on the
terms (but only to the extent) provided in Article 14 of the Space System
Contract and Article 11 of the O&M Contract (collectively, the "Motorola
Intellectual Property"). Without limiting any other provision of this Agreement
(including, without limitation, Section 3), Motorola consents to the assignment
by Iridium to the Collateral Agent of all of Iridium's rights in and to the
Motorola Intellectual Property pursuant to the Security Agreement.
(b) In furtherance of the foregoing, Motorola agrees that (i) for
any period during which the Collateral Agent shall be exercising its Security
Agreement Remedies (including in the event that the Collateral Agent or any of
its designees shall succeed to Iridium's interest in the Space System Contract
and/or the O&M Contract) or (ii) in the event that, as a result of the exercise
by the Collateral Agent of the Security Agreement Remedies, Iridium's rights in
the Space System Contract and/or the O&M Contract are transferred to another
Person, Motorola hereby grants to the Collateral Agent or the relevant
transferee, as the case may be (herein, including any designee, each a
"Licensee") a license to access, use and maintain, and (if deemed by the
relevant Licensee reasonably necessary for the operation of the Space Segment,
to modify and enhance) all Motorola Intellectual Property on the same terms as
are applicable to Iridium (except as otherwise expressly provided herein) or
otherwise on terms reasonably acceptable to Motorola and the relevant Licensee;
provided that (i) no fee, royalty or other amount shall be required to be paid
by any Licensee to Motorola with respect thereto (except as expressly set forth
in the Motorola Assigned Agreements), (ii) any Licensee shall be entitled to use
the Motorola Intellectual Property for so long as such Licensee is operating the
Space Segment, but solely in connection with the operation of the Space Segment
and for no other purpose and (iii) except as set forth herein (including,
without limitation, the last sentence of this paragraph (b)), without the prior
written consent of Motorola, no Licensee shall be permitted to assign, license
or otherwise transfer to any other Person any of its rights in the Motorola
Intellectual Property (and any such assignment, license or transfer in violation
of this clause shall be null and void). Without limiting the foregoing, each
Licensee shall be permitted to sublicense the Motorola Intellectual Property to
any of its respective subcontractors, agents or affiliates, provided that any
such sublicensee shall be subject to the same terms and conditions set forth in
this Section as are applicable to such Licensee.
(c) In the event that at any time other intellectual property
rights (other than the Motorola Intellectual Property) which are then owned or
held by Motorola or any of its
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Subsidiaries are required for the operation of the Space Segment, Motorola shall
promptly notify the Collateral Agent or, following a transfer of Iridium's
rights in the Space System Contract and/or the O&M Contract to any other Person,
such other Person and will license, or cause to be licensed, to the Collateral
Agent or such other Person, as the case may be, such other intellectual property
rights on the same terms and conditions as shall be applicable hereunder to the
Motorola Intellectual Property, and such other intellectual property rights
shall be deemed to be Motorola Intellectual Property for purposes of the
agreements contained in this Section.
(d) Motorola agrees, solely for the benefit of the Collateral
Agent or any other Licensee, not to assert against the Collateral Agent or any
other Licensee any violation of the terms of any intellectual property rights
(including, without limitation, the Motorola Intellectual Property) now or
hereafter owned or held by Motorola (i) by the Collateral Agent in connection
with its exercise of the Security Agreement Remedies or (ii) by any other
Licensee in connection with its operation and maintenance of the Space Segment,
but only for so long as the license or permitted use under this Section is
effective as provided in paragraph (b) above.
(e) Upon the reasonable request of (i) the Collateral Agent in
connection with the exercise of the Security Agreement Remedies or (ii) from and
after the transfer of Iridium's rights in the Space System Contract and/or the
O&M Contract, any other Licensee, Motorola agrees to deliver to the Collateral
Agent or such other Licensee copies of all software documentation required to be
delivered by Motorola under the Motorola Assigned Agreements, subject to the
terms and conditions of the Motorola Assigned Agreements.
(f) Upon exercise of the license granted herein to the Collateral
Agent or any other Licensee, Motorola will provide technical assistance services
and training upon the reasonable request (and at the cost) of the Collateral
Agent in connection with its exercise of the Security Agreement Remedies or any
other Licensee, as the case may be. To the extent any filing, registration or
similar action under applicable Government Rule is required with respect to the
use of the Motorola Intellectual Property by any Licensee, Motorola agrees to
use all reasonable efforts to make all necessary filings or registration, or to
take other similar action, at the cost of Iridium (at any time prior to the
transfer of Iridium's rights in the Space System Contract to any Licensee) or
otherwise at the cost of such Licensee, in order to provide to such Licensee the
full intended benefits of the license granted herein.
(g) Motorola hereby agrees to indemnify and hold harmless the
Collateral Agent and each other Licensee on the same terms and conditions
(including, without limitation, the same limitations, which shall be applicable
to the Collateral Agent and each other Licensee in the aggregate) (mutatis
mutandis) as set forth in Article 15 of the Space System Contract and Article 12
of the O&M Contract (as if each reference therein to "Buyer" or "Owner" referred
to the Collateral Agent or such other Licensee, as the case may be), provided
that notwithstanding anything herein to the contrary, neither the Collateral
Agent nor any other Licensee shall be liable, or assume any liability, for the
obligations of Iridium under the Space System Contract or the O&M Contract
unless and until such entity shall have expressly assumed any such obligations
in connection with the exercise of the Security Agreement Remedies.
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ARTICLE V
OTHER AGREEMENTS
Motorola hereby further acknowledges and agrees that, so long as
this Agreement remains in effect:
SECTION 5.01. Minimum Ownership. Motorola will be at all times,
directly or through a wholly-owned Subsidiary, the record and beneficial owner
of at least 13,266,713 Class 1 Interests of Iridium LLC (as such number may be
adjusted from time to time by stock splits, stock dividends, recapitalizations
or other similar transactions), free and clear of any Lien (other than any
transfer or other restrictions relating to such interests, to the extent the
same constitute Liens, arising by operation of law or under the Iridium LLC
Agreement or any shareholder or voting agreement to which Motorola or a
wholly-owned Subsidiary of Motorola is a party in respect of any such interests
held by it).
SECTION 5.02. Non-Compete. Motorola will not produce for itself
or others a commercial satellite-based space system of a global communications
system similar to the Iridium System, which satellite-based space system
provides direct coverage to the entire earth and is designed to principally
provide direct voice service to and from hand-held, fully portable subscriber
units no larger than the first-generation Iridium handheld voice units; provided
that: (a) nothing in this Section shall be construed to prohibit Motorola from
producing satellite-based space systems for Iridium or any successor or related
entity; and (b) notwithstanding anything in this Agreement to the contrary, the
agreement of Motorola under this Section shall terminate and be of no further
force and effect upon the earliest to occur of (i) the date on which this
Agreement shall terminate pursuant to Section 7.13, (ii) the date on which the
Space System Contract shall be terminated in accordance with the terms thereof
(but in no event earlier than December 31, 2000) and (iii) July 31, 2003.
SECTION 5.03. Conditions Precedent. In order to satisfy certain
of the conditions precedent specified in Section 4.01 of the Secured Credit
Agreement, Motorola agrees to deliver the documents specified in Parts III and
VI of Appendix 1 to the Secured Credit Agreement.
SECTION 5.04. Payments. Motorola hereby acknowledges and agrees
that all payments to be made by Motorola to Iridium under the Motorola Assigned
Agreements shall be made in lawful money of the United States of America,
directly to the Collateral Agent, for deposit into the Prepayment Account (as
such term is defined in the Depositary Agreement) (details of which account
shall be provided in writing to Motorola by the Collateral Agent) or to such
other Person and/or at such other address as the Collateral Agent may from time
to time specify in writing to Motorola, for application by the Collateral Agent
in the manner contemplated by the Depositary Agreement, and shall be accompanied
by a notice from Motorola stating that such payments are made under the
applicable Motorola Assigned Agreement and identifying the relevant provision
thereof under which such payment was made. Iridium hereby irrevocably authorizes
and directs Motorola to make such payments in respect of each Motorola Assigned
Agreement as provided above and each of the Collateral Agent (to the extent owed
any payments under such Motorola Assigned Agreement by virtue of this Agreement)
and Iridium
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confirms that any such payment made in the manner herein provided will
constitute a valid discharge of the relevant payment obligations of Motorola
under such Motorola Assigned Agreement, provided that the Collateral Agent shall
have no liability or responsibility hereunder for determining the correctness of
the amount of any payment made or required to be made by Motorola under Motorola
Assigned Agreement. Motorola will not, without the prior written consent of the
Collateral Agent, make any payments to or for the benefit of Iridium under any
of the Motorola Assigned Agreements except in accordance with this Section.
SECTION 5.05. Designees and Transferees. It is acknowledged and
agreed that the Collateral Agent may employ agents and attorneys-in-fact in
exercising the Security Agreement Remedies, and in that connection may designate
another entity to take action on behalf of the Collateral Agent including, but
not limited to, the enforcement of and/or acquisition of Iridium's rights in any
of the Motorola Assigned Agreements or Iridium's assets relating to the Iridium
Business or the equity interests of Iridium. It is further acknowledged and
agreed that in connection with the exercise by the Collateral Agent of the
Securities Agreement Remedies, the Collateral Agent may cause Iridium's rights
in any or all of the Motorola Assigned Agreements (and/or other assets
associated with the Iridium Business) to be transferred or assigned to a third
party pursuant to the Security Agreement (a "transferee"). The provisions of
this Agreement (including, without limitation, in Articles III and IV and this
Article) are intended to benefit the Collateral Agent, its agents,
attorneys-in-fact and designees (collectively, the "designees") and each
transferee. Accordingly, unless the context otherwise requires, references to
"Collateral Agent" or "Administrative Agent" shall be deemed to include
references to designees and transferees thereof permitted pursuant to the
Security Documents (regardless of whether so expressly provided herein), and all
actions permitted to be taken by the Collateral Agent or the Administrative
Agent, as the case may be, under this Agreement may be taken by any such
designee or transferee, as appropriate.
ARTICLE VI
SUBORDINATION
SECTION 6.01. Agreement to Subordinate.
(a) Motorola covenants and agrees, and Iridium likewise covenants
and agrees, that, to the extent and in the manner hereinafter set forth in this
Section (but subject to Section 6.01(b)), the payment of the Motorola
Subordinated Claims is hereby expressly made subordinate and subject in right of
payment to the prior indefeasible payment in full in cash of all Senior Bank
Debt. In further of the foregoing, (except as expressly permitted under
paragraph (b) below) Motorola and Iridium agree that no payment shall be made by
Iridium, nor accepted by Motorola, on account of the Motorola Subordinated
Claims unless and until all Senior Bank Debt shall have been paid in full in
cash and all commitments of the holders of Senior Bank Debt to make loans under
the Senior Credit Agreement shall have expired or terminated. In the event that,
notwithstanding the foregoing (but subject to Section 6.02 in the circumstances
described therein), Motorola shall have received any payment prohibited by this
Section (including, in the case of any payment covered by paragraph (b) below,
the receipt by Motorola of such payment at a time when a Default shall have
occurred and be continuing), then and in such event such payment shall be held
in trust by Motorola for the holders of the Senior Bank Debt and paid over
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or delivered forthwith to the Senior Bank Debt Representative for application to
the Senior Bank Debt remaining unpaid after giving effect to any concurrent
payment of or distribution to or for the holders of Senior Bank Debt.
(b) Notwithstanding anything herein to the contrary, so long as
(i) no default in payment in respect of the Senior Bank Debt exists and (ii) no
Event of Default shall have occurred and be continuing, Iridium may pay to
Motorola (and Motorola shall be entitled to receive and retain) (x) cash
interest when due on the Deferred O&M Amounts (and any promissory notes of
Iridium evidencing the same) in accordance with Section 3 of the Memorandum of
Understanding, (y) cash compensation pursuant to Section 3(e) or 3(f) of the
Agreement Regarding Guarantee and (z) any amounts in respect of the Refinancing
or payment of any of the Motorola Subordinated Claims to the extent not
prohibited by Section 7.14 of the Secured Credit Agreement. Nothing herein shall
prevent the payment by Iridium LLC to Motorola of the warrant compensation
provided in the Agreement Regarding Guarantee.
SECTION 6.02. Bankruptcy, Liquidation, Dissolution, Etc. In the
event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to Iridium or to its creditors, as such, or to
its assets, or (b) any liquidation, dissolution or other winding up of Iridium,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of Iridium, then and in any such event:
(i) the holders of Senior Bank Debt shall be entitled to receive
payment in full in cash of all amounts due or to become due on or in
respect of all Senior Bank Debt, before Motorola is entitled to receive
any payment on account of the Motorola Subordinated Claims; and
(ii) any payment or distribution of assets of Iridium of any
kind or character, whether in cash, property or securities, by set-off
or otherwise, to which Motorola would be entitled but for the provisions
of this Agreement, including any such payment or distribution which may
be payable or deliverable by reason of the payment of any other
Indebtedness of Iridium being subordinated to the payment of the
Motorola Subordinated Claims, shall be paid by the liquidating trustee
or agent or other person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of Senior Bank Debt or the Senior Bank Debt
Representative or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Bank Debt may have
been issued, ratably according to the aggregate amounts remaining unpaid
on account of the Senior Bank Debt held or represented by each such
holder, to the extent necessary to make payment in full in cash of all
Senior Bank Debt remaining unpaid, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior Bank Debt;
and
(iii) in the event that, notwithstanding the foregoing
provisions of this Section, Motorola shall have received any such
payment or distribution of assets of Iridium of any kind or character,
whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the
payment of any other
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Indebtedness of Iridium being subordinated to the payment of the
Motorola Subordinated Claims before all Senior Bank Debt is paid in full
in cash, then and in such event such payment or distribution shall be
held in trust for the holders of Senior Bank Debt and paid over or
delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of Iridium for application to the payment of all
Senior Bank Debt remaining unpaid, to the extent necessary to pay all
Senior Bank Debt in full in cash, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Bank Debt.
If Motorola shall have failed to file proper claims or proofs of
claim with respect to the Motorola Subordinated Claims in any proceeding of the
type referred to in the first sentence of this Section prior to 30 days before
the expiration of the time to file such claims or proofs of claim, Motorola
hereby appoints and empowers the Senior Bank Debt Representative (i) to file
such claims or proofs of claim and/or (ii) if Motorola shall fail to vote any
such claim at least 15 days prior to the expiration of the time to vote such
claim, to vote such claim; provided that the Senior Bank Debt Representative
shall have no obligation to file and/or vote any such claim. If the Senior Bank
Debt Representative votes any such claim in accordance with the provisions of
this paragraph Motorola shall not be entitled to modify, revoke or withdraw such
vote. Motorola shall execute and deliver, at the expense of the holders of the
Senior Bank Debt, such agreements, instruments and documents as the holders of
the Senior Bank Debt or the Senior Bank Debt Representative may reasonably
request to carry out the intent of this paragraph.
SECTION 6.03. Subrogation. Subject to the payment in full in cash
of all Senior Bank Debt and the expiration or termination of the commitments of
the holders of Senior Bank Debt to make extensions of credit under the Senior
Credit Agreement, Motorola shall be subrogated to the rights of the holders of
Senior Bank Debt to receive payments and distributions of cash, property and
securities applicable to the Senior Bank Debt until the Motorola Subordinated
Claims shall be paid in full. For purposes of such subrogation, no payments or
distributions to the holders of Senior Bank Debt of any cash, property or
securities to which Motorola would be entitled except for the provisions of this
Section, and no payments over pursuant to the provisions of this Section to the
holders of Senior Bank Debt by Motorola shall, as among Iridium, its creditors
(other than holders of Senior Bank Debt) and Motorola, be deemed to be a payment
or distribution by Iridium to or on account of the Senior Bank Debt.
SECTION 6.04. Provisions Solely to Define Relative Rights. The
provisions of this Section are and are intended solely for the purpose of
defining the relative rights of Motorola as the holder of the Motorola
Subordinated Claims, on the one hand, and the holders of Senior Bank Debt, on
the other hand. Nothing contained in this Section or elsewhere in this Agreement
is intended to or shall (a) impair, as among Iridium, its creditors (other than
holders of Senior Bank Debt) and Motorola, the obligation of Iridium, which is
absolute and unconditional, to pay to Motorola the Motorola Subordinated Claims
as and when the same shall become due and payable in accordance with their
respective terms, or (b) affect the relative rights against Iridium of Motorola
and creditors of Iridium (other than the holders of Senior Bank Debt).
SECTION 6.05. No Waiver of Subordination Provisions. No right of
any present or future holder of any Senior Bank Debt to enforce subordination as
herein provided shall at any
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time in any way be prejudiced or impaired by any act or failure to act on the
part of Iridium or by any act or failure to act, in good faith, by any such
holder, or by any non-compliance by Iridium with the terms, provisions and
covenants of this Agreement, regardless of any knowledge thereof any such holder
may have or be otherwise charged with. Without in any way limiting the
generality of the foregoing sentence, the holders of Senior Bank Debt may
(except as provided in Section 6.08), at any time and from time to time, without
the consent of or notice to Motorola, without incurring responsibility to
Motorola and without impairing or releasing the subordination provided in this
Section or the obligations hereunder of Motorola to the holders of Senior Bank
Debt, do any one or more of the following:
(i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Senior Bank Debt or any
instrument evidencing the same or any agreement under which Senior Bank
Debt is outstanding;
(ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Bank Debt, or waive any
provision thereof or the occurrence of any default thereunder;
(iii) release any Person liable in any manner for the collection
of Senior Bank Debt; and
(iv) exercise or refrain from exercising any rights against
Iridium and any other Person.
SECTION 6.06. Limitations on Remedies. Notwithstanding anything
contained herein to the contrary, prior to the payment of all Senior Bank Debt
in full in cash and the expiration or termination of the commitments of the
holders of Senior Bank Debt to make extensions of credit under the Senior Credit
Agreement, Motorola will not ask, demand, claim or ▇▇▇ for payment of, or take
any other action to collect, any of the Motorola Subordinated Claims, whether by
set-off or in any other manner, and, without limiting the foregoing, Motorola
will not (i) initiate any judicial proceeding or action to collect all or any
portion of the Motorola Subordinated Claims or (ii) file or join with others in
filing a petition against Iridium or any of its Subsidiaries under any
bankruptcy or similar law; provided that, notwithstanding the foregoing,
Motorola shall be permitted to commence judicial proceedings against Iridium to
the extent (but only to the extent) necessary to avoid being barred by any
relevant statute of limitations from pursuing any such right or remedy against
Iridium and thereafter shall take only such action in connection with such
proceeding as shall be reasonably necessary to preserve such right or remedy.
Motorola agrees to notify the Administrative Agent of the commencement of any
such proceeding and of any material development in connection therewith.
SECTION 6.07. Covenants Relating to Motorola Subordinated Claims.
Motorola covenants and agrees with the Lenders and the Administrative Agent
that, until the payment and satisfaction in full of the Senior Bank Debt and the
expiration or termination of the Commitments of the Lenders under the Senior
Credit Agreement:
(a) the Motorola Subordinated Claims shall be unsecured
obligations of Iridium (and not of any of Iridium's Subsidiaries), and
Motorola will not ask, demand, take or
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receive any property of Iridium or any of its Subsidiaries as security
for all or any portion of the Motorola Subordinated Claims (except as
may arise by operation of law);
(b) Motorola agrees that it does not, and will not, have or
acquire any claim against any Subsidiary of Iridium with respect to any
of the Motorola Subordinated Claims;
(c) Motorola will not, without the prior written consent of the
Administrative Agent, assign or otherwise transfer, in whole or in part,
or encumber any of its rights or obligations in respect of the Motorola
Subordinated Claims (other than in connection with any transaction
permitted under the last sentence of Section 3.03);
(d) Motorola will not, without the prior written consent of the
Administrative Agent, amend or otherwise modify the provisions of the
Motorola Subordinated Claims or any Motorola Guarantee Agreement in any
way which could reasonably be expected to be adverse to the interests of
the holders of Senior Bank Debt under this Agreement;
(e) Motorola will promptly following the request of the
Administrative Agent execute and deliver such further documents and do
such other acts and things as the Administrative Agent or any Lender may
reasonably request from time to time in order to more fully effect the
purposes of this Section.
SECTION 6.08. Modification of the Senior Credit Agreement.
Notwithstanding anything herein or in the Senior Credit Agreement to the
contrary, no amendment or modification to the Senior Credit Agreement or any
refinancing thereof shall be effective as against Motorola for purposes of the
subordination provisions set forth in this Article (and the related definitions)
without the prior written consent thereto by Motorola, if such amendment,
modification or refinancing, as the case may be, (a) increases the aggregate
commitments under the Senior Credit Agreement such that the aggregate principal
amount of loans under the Senior Bank Debt would exceed $1,700,000,000, (b)
alters in any material respect the types of obligations that constitute Senior
Bank Debt, (c) extends the maturity of the Loans under the Senior Credit
Agreement beyond July 15, 2005 or (d) modifies any of the subordination
provisions set forth in this Article.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. No Waiver. No failure on the part of any Agent or
any Lender to exercise, and no course of dealing with respect to, and no delay
in exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by any Agent or any Lender of
any right, power or remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The remedies herein
are cumulative and are not exclusive of any remedies provided by law.
SECTION 7.02. Notices. All notices, requests, consents and
demands hereunder shall be in writing and telecopied or delivered to the
intended recipient at the "Address for Notices" specified beneath its name on
the signature pages hereof or, as to either party, at such
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other address as shall be designated by such party in a notice to the other
party. Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given when transmitted by telecopier or
personally delivered or, in the case of a mailed notice, upon receipt, in each
case given or addressed as aforesaid.
SECTION 7.03. Expenses. Motorola agrees to reimburse each of the
Lenders and the Agents for all reasonable out-of-pocket costs and expenses of
the Lenders and the Agents (including, without limitation, the reasonable fees
and expenses of legal counsel) in connection with (a) any default by Motorola in
the performance of any of its obligations hereunder and any enforcement or
collection proceeding resulting therefrom, including, without limitation, all
manner of participation in or other involvement with (i) bankruptcy, insolvency,
receivership, foreclosure, winding up or liquidation proceedings, (ii) judicial
or regulatory proceedings and (iii) workout, restructuring or other negotiations
or proceedings (whether or not the workout, restructuring or transaction
contemplated thereby is consummated) and (b) the enforcement of this Section.
SECTION 7.04. Amendments. The terms of this Agreement may be
amended or modified only by an instrument in writing duly executed by Motorola,
Iridium and the Administrative Agent and the Collateral Agent, and any provision
of this Agreement may be waived by the Administrative Agent acting with the
consent of such Lenders. Any such amendment or waiver shall be binding upon
Motorola, Iridium, each Agent, each Lender and (in the case of any amendment or
waiver relating to Article VI or any related definitions or terms) any other
holder of Senior Bank Debt. Any waiver shall be effective only for the specified
purpose for which it was given.
SECTION 7.05. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the respective successors and assigns
of Motorola, Iridium, the Agents and the Lenders, provided, however, that
Motorola shall not assign or transfer any of its rights or obligations hereunder
without the prior written consent of the Administrative Agent. The agreements of
the parties hereto are solely for the benefit of Motorola, the Agents and the
other Secured Parties, and no person or entity (other than the foregoing parties
and their respective permitted successors and assigns) shall have any rights
hereunder.
SECTION 7.06. Captions. The captions and section headings
appearing herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Agreement.
SECTION 7.07. Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument and either of the parties hereto may execute this Agreement by
signing any such counterpart.
SECTION 7.08. Governing Law; Submission to Jurisdiction. This
Agreement shall be governed by, and construed in accordance with, the law of the
State of New York. Motorola hereby submits to the nonexclusive jurisdiction of
the United States District Court for the Southern District of New York and of
the Supreme Court of the State of New York sitting in New York County (including
its Appellate Division), and of any other appellate court in the State of New
York, for the purposes of all legal proceedings arising out of or relating to
this
Motorola Consent
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Agreement or the transactions contemplated hereby. Motorola hereby irrevocably
waives, to the fullest extent permitted by applicable law, any objection that it
may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum. Motorola irrevocably consents
to the service of any and all process in any such suit, action or proceeding by
mailing of copies of such process to it at its address provided under Section
7.02. All mailings under this Section shall be by certified mail, return receipt
requested. Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 7.09. Waiver of Jury Trial. EACH OF MOTOROLA, IRIDIUM,
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT (IN EACH CASE, ON BEHALF OF
ITSELF AND THE LENDERS) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 7.10. Agents and Attorneys-in-Fact. Each Agent may employ
agents and attorneys-in-fact in connection herewith and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it in good faith.
SECTION 7.11. Severability. If any provision hereof is invalid
and unenforceable in any jurisdiction, then, to the fullest extent permitted by
law, (a) the other provisions hereof shall remain in full force and effect in
such jurisdiction and shall be liberally construed in favor of the Agents and
the Lenders in order to carry out the intentions of the parties hereto as nearly
as may be possible and (b) the invalidity or unenforceability of any provision
hereof in any jurisdiction shall not affect the validity or enforceability of
such provision in any other jurisdiction.
SECTION 7.12. Confidentiality.
(a) Motorola acknowledges that from time to time financial
advisory, investment banking and other services may be offered or provided to
Motorola or one or more of its Subsidiaries (in connection with this Agreement
or otherwise) by any Lender or by one or more subsidiaries or affiliates of such
Lender. Motorola hereby agrees that, in the event any such services are provided
to Motorola or any of its Subsidiaries, each Lender providing such services is
authorized to share any information delivered to such Lender by Motorola and its
Subsidiaries pursuant to the Credit Documents, or in connection with the
decision of such Lender to enter into the Secured Credit Agreement, to any such
subsidiary or affiliate providing such services, provided that any such
subsidiary or affiliate receiving such information agrees to be bound by the
provisions of paragraph (b) of this Section as if it were a Lender hereunder.
Such authorization shall survive the repayment of the Loans and the termination
of the Commitments.
(b) Each Agent agrees on behalf of itself, each Lender and each
Global Lead Arranger (and on behalf of their respective affiliates, directors,
officers, employees and representatives) to restrict dissemination of any
Confidential Information (as defined below) only to those of its directors,
officers, employees and representatives who are involved in the
Motorola Consent
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evaluation of such information, and to use reasonable precautions to keep such
information confidential, in accordance with its customary procedures for
handling confidential information of the same nature and in accordance with safe
and sound banking practices. For purposes of the Credit Documents, "Confidential
Information" shall mean any non-public information supplied to it by Motorola
pursuant to this Agreement or any other Motorola Agreement, that is identified
(in writing, in the case of written information) by Motorola as being
confidential at the time the same is delivered to the Lenders, the Agents or the
Global Lead Arrangers, provided that nothing herein shall limit the disclosure
of any such information by any Lender, any Agent or any Global Lead Arranger (i)
after such information shall have become public (other than through a violation
of this Section by such Lender, any Agent or any Global Lead Arranger), (ii) to
the extent required by statute, rule, regulation or judicial process, (iii) to
counsel or other experts for any of the Lenders, Agents or Global Lead
Arrangers, provided that such counsel or experts shall be bound by the
requirements of this paragraph (b) with respect to any such information, (iv) to
bank examiners (or any other regulatory authority having jurisdiction over any
Lender, any Agent or any Global Lead Arranger), or to auditors or accountants,
(v) to any Global Lead Arranger, any Agent or any Lender (or to any of their
respective affiliates, provided that any such disclosure to any such affiliate
shall be made on a "need to know" basis only for use by such affiliates (and
each of its officers, directors and employees) solely in connection with the
transactions contemplated by the Credit Documents and each such affiliate (and
each of its officers, directors and employees) shall agree (for the benefit of
Iridium and Motorola) to be bound to keep such information confidential on the
same terms as set forth in this Section), (vi) in connection with any litigation
to which any one or more of the Lenders, the Global Lead Arrangers or the Agents
is a party, or in connection with the enforcement of rights or remedies
hereunder or under any other Credit Document, provided that the party intending
to make such disclosure shall use reasonable efforts to cooperate with Motorola
to reasonably minimize the extent of any such disclosure or to obtain
confidential treatment of information to be disclosed, (vii) to a subsidiary or
affiliate of such Lender as provided in paragraph (a) of this Section or (viii)
to any assignee or participant (or prospective assignee or participant) so long
as such assignee or participant (or prospective assignee or participant) first
executes and delivers to the respective Lender and Motorola a confidentiality
agreement containing provisions substantially the same as those in this Section;
provided, further, that in no event shall any Lender, any Agent or any Global
Lead Arranger be obligated or required to return any materials furnished by
Motorola hereunder or under any other Motorola Agreement, except to the extent
it has agreed to do so in writing in conjunction with the receipt of such
information. The obligations of any assignee that has executed a confidentiality
agreement as provided above shall be superseded by this Section on the date upon
which such assignee becomes a Lender hereunder pursuant to Section 11.04(b) of
the Secured Credit Agreement.
SECTION 7.13. Effective Date; Termination. This Agreement shall
become effective upon the execution and delivery of one or more counterparts
hereof by each of the parties hereto and (except as otherwise provided in clause
(b) of Section 5.02) shall continue in effect until payment in full of all
principal of and interest on the Loans and all other amounts owing to the
Lenders and the Agents under the Secured Credit Agreement and the other Credit
Documents and the expiration or termination of the Commitments, whereupon this
Agreement shall terminate. If, at any time, all or part of any payment with
respect to the Loans (or, in the case of Article VI, the Senior Bank Debt)
theretofore made by Iridium or any other Person is rescinded or must otherwise
be returned by the holders thereof for any reason whatsoever
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(including, without limitation, the bankruptcy, insolvency, reorganization or
similar action involving Iridium or such other Person), this Agreement (except
as otherwise provided in clause (b) of Section 5.02) shall continue to be
effective or be reinstated, as the case may be, all as though such payment had
not been made. This Agreement shall supersede and replace in all respects the
Consent and Agreement dated as of January 27, 1998 entered into by Motorola in
connection with the Existing Secured Credit Agreement, and such Consent and
Agreement shall terminate automatically upon this Agreement coming into force.
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IN WITNESS WHEREOF, the parties hereto have caused this Consent
and Agreement to be duly executed and delivered as of the day and year first
above written.
MOTOROLA, INC.
By
--------------------------
Name:
Title:
Address for Notices:
Motorola, Inc.
Corporate Offices
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Senior Vice President, Finance
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
with copies to:
Motorola, Inc.
Corporate Offices
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
and
Motorola, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President -
Law Department, Iridium Matters
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Motorola Consent
▇▇▇
-▇▇-
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ OPERATING LLC
By
--------------------------
Name:
Title:
Motorola Consent
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AGENTS
THE CHASE MANHATTAN BANK,
as Administrative Agent
By
--------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Collateral Agent
By
--------------------------
Name:
Title:
Motorola Consent
281
SCHEDULE 1
Matters Affecting Certain Motorola Assigned Agreements
[to be completed by Motorola]
Schedule 1 to Motorola Consent
282
SCHEDULE 2
Governmental Approvals and Proceedings
[to be completed by Motorola]
Schedule 2 to Motorola Consent
283
EXHIBIT H
[FORM OF MOTOROLA PLEDGE AGREEMENT]
PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of December __, 1998 between: MOTOROLA,
INC., a corporation duly organized and validly existing under the laws of the
State of Delaware (the "Pledgor"); and THE CHASE MANHATTAN BANK, as collateral
agent for the lenders party to the Credit Agreement referred to below (in such
capacity, together with its successors in such capacity, the "Collateral
Agent").
Iridium Operating LLC, a Delaware limited liability company (the
"Company"), certain lenders, the Collateral Agent, The Chase Manhattan Bank, as
Administrative Agent, and Barclays Bank PLC, as Documentation Agent thereunder
are parties to a Senior Secured Credit Agreement dated as of December 23, 1998
(as modified, supplemented or otherwise modified and in effect from time to
time, the "Credit Agreement"), providing, subject to the terms and conditions
thereof, for loans to be made by said lenders to the Company in an aggregate
principal amount not exceeding $800,000,000.
To induce said lenders to enter into the Credit Agreement and to
extend credit thereunder, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Pledgor has agreed
to pledge and grant a security interest in the Collateral (as hereinafter
defined) as security for the Secured Obligations (as so defined). Accordingly,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. Capitalized terms used but not
defined herein shall have their respective defined meanings in the Credit
Agreement. In addition, as used herein:
"Collateral" has the meaning assigned to such term in Article
III.
"Secured Obligations" shall mean, collectively, (a) all
obligations of the Company in respect of principal of and interest on the
Loans and all other amounts owing under the Credit Agreement and the
other Credit Documents to which it is a party, (b) all obligations of
each Subsidiary of the Company under Credit Document to which it is a
party and (c) all obligations of the Pledgor to the Collateral Agent
hereunder.
"Secured Parties" means the Lenders, the Collateral Agent and the
other Agents.
"Uniform Commercial Code" shall mean the Uniform Commercial Code
as in effect from time to time in the State of New York.
Motorola Pledge Agreement
▇▇▇
-▇-
▇▇▇▇▇▇▇ 1.02. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified, including an amendment
and restatement thereof, but subject to any restrictions on such amendments,
supplements or modifications set forth herein, (b) any reference herein to any
Person shall be construed to include such Person's successors and assigns or, in
the case of any Governmental Authority, any entity succeeding to any or all of
the functions of such Governmental Authority, (c) the words "herein", "hereof"
and "hereunder", and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (d)
all references herein to Articles, Sections and Annexes shall be construed to
refer to Articles and Sections of, and Annexes to, this Agreement and (e) the
words "asset" and "property" shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
The Pledgor represents and warrants to the Secured Parties that:
(a) The Pledgor has all right, title and interest in, to and
under, and is the record owner of, the Collateral in which it purports to grant
a security interest pursuant to Section 3 and no Lien exists or will exist upon
the Collateral at any time (and no right or option to acquire the same exists in
favor of any other Person), except for the pledge and security interest in favor
of the Collateral Agent for the benefit of the Lenders created or provided for
herein, which pledge and security interest constitute a first priority perfected
pledge and security interest in and to all of the Collateral.
(b) The Pledged Stock represented by the certificates identified
in Annex 1 is, and all other Pledged Stock in which the Pledgor shall hereafter
grant a security interest pursuant to Article III will be, duly authorized,
validly existing, fully paid and non-assessable and none of such Pledged Stock
is or will be subject to any contractual restriction, or any restriction under
the charter or by-laws of the issuer of the Pledged Stock, upon the transfer of
such Pledged Stock (except for any such restriction contained herein).
(c) The Pledged Stock represented by the certificates identified
in Annex 1 constitutes all of the issued and outstanding shares of capital stock
of any class of the issuer of the Pledged Stock beneficially owned by the
Pledgor on the date hereof (whether or not registered in the name of the
Pledgor) and Annex 1 correctly identifies, as at the date hereof, the respective
class and par value of the shares comprising such Pledged Stock and the
respective number of shares (and registered owners thereof) represented by each
such certificate.
Motorola Pledge Agreement
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ARTICLE III
PLEDGE
As collateral security for the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of the Secured
Obligations now existing or hereafter arising, the Pledgor hereby pledges,
assigns, hypothecates and transfers to the Collateral Agent for the equal and
ratable benefit of the Secured Parties, and hereby grants to the Collateral
Agent for the equal and ratable benefit of the Secured Parties a Lien on and
security interest in, all of the Pledgor's right, title and interest in, to and
under the following, whether now owned by the Pledgor or hereafter acquired and
whether now existing or hereafter coming into existence and wherever located
(all being collectively referred to herein as "Collateral"):
(a) the shares of common stock of Space System License, Inc.
represented by the certificate(s) identified in Annex 1 and all other shares of
capital stock of whatever class of such issuer, now or hereafter owned by the
Pledgor, in each case together with the certificates evidencing the same or, if
the Pledgor shall at any time transfer the FCC License to another Subsidiary,
the shares of common stock of such Subsidiary and all other shares of capital
stock of whatever class of such Subsidiary (collectively, the "Pledged Stock");
(b) all shares, securities, moneys or property representing a
dividend on any of the Pledged Stock, or representing a distribution or return
of capital upon or in respect of the Pledged Stock, or resulting from a
split-up, revision, reclassification or other like change of the Pledged Stock
or otherwise received in exchange therefor, and any subscription warrants,
rights or options issued to the holders of, or otherwise in respect of, the
Pledged Stock;
(c) without affecting the obligations of the Pledgor under any
provision prohibiting such action hereunder or under any other Motorola
Agreement, in the event of any consolidation or merger in which the issuer of
the Pledged Stock is not the surviving corporation, all shares of each class of
the capital stock of the successor corporation (unless such successor
corporation is the Pledgor itself) formed by or resulting from such
consolidation or merger; and
(d) all proceeds, products, offspring, rents, revenues, issues,
profits, royalties, income, benefits, accessions, additions, substitutions and
replacements of and to any of the property of the Pledgor described in the
preceding clauses of this Section and, to the extent related to any property
described in said clauses or such proceeds, all books, correspondence, credit
files, records, invoices and other papers.
ARTICLE IV
REMEDIES
In furtherance of the grant of the pledge and security interest
pursuant to Article III, the Pledgor hereby agrees with the Secured Parties as
follows:
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▇▇▇▇▇▇▇ 4.01. Delivery and Other Perfection. The Pledgor shall:
(a) if any of the shares, securities, moneys or property required
to be pledged by the Pledgor under Article III are received by the Pledgor,
forthwith either (x) transfer and deliver to the Collateral Agent such shares or
securities so received by the Pledgor (together with the certificates for any
such shares and securities duly endorsed in blank or accompanied by undated
stock powers duly executed in blank), all of which thereafter shall be held by
the Collateral Agent, pursuant to the terms of this Agreement, as part of the
Collateral or (y) take such other action as the Agent shall deem necessary or
appropriate to duly perfect the Lien created hereunder in such shares,
securities, moneys or property in Article III;
(b) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that may be
necessary or desirable (in the judgment of the Collateral Agent) to create,
preserve, perfect or validate the security interest granted pursuant hereto or
to enable the Collateral Agent to exercise and enforce its rights hereunder with
respect to such pledge and security interest, including, without limitation,
causing any or all of the Collateral to be transferred of record into the name
of the Collateral Agent or its nominee (and the Collateral Agent agrees that if
any Collateral is transferred into its name or the name of its nominee, the
Collateral Agent will thereafter promptly give to the Pledgor copies of any
notices and communications received by it with respect to the Collateral pledged
by the Pledgor hereunder);
(c) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise ▇▇▇▇ such books and records in such manner as
the Collateral Agent may reasonably require in order to reflect the security
interests granted by this Agreement; and
(d) permit representatives of the Collateral Agent, upon
reasonable notice, at any time during normal business hours to inspect and make
abstracts from its books and records pertaining to the Collateral, all in such
manner as the Collateral Agent may require.
SECTION 4.02. Other Financing Statements and Liens. Without the
prior written consent of the Collateral Agent, the Pledgor shall not file or
suffer to be on file, or authorize or permit to be filed or to be on file, in
any jurisdiction, any financing statement or like instrument with respect to the
Collateral in which the Collateral Agent is not named as the sole secured party
for the benefit of the Secured Parties.
SECTION 4.03. Preservation of Rights. The Collateral Agent shall
not be required to take steps necessary to preserve any rights against prior
parties to any of the Collateral.
SECTION 4.04. Pledged Stock.
(a) The Pledgor will cause the Collateral to constitute at all
times 100% of the total number of shares of each class of capital stock then
outstanding of the Subsidiary of the Pledgor holding the FCC License.
(b) Except as expressly permitted under the Motorola Consent, the
Pledgor (i) will not create, incur, assume or suffer to exist any Lien upon, or
sell, assign, transfer or
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▇▇▇▇▇▇▇▇▇ dispose of all or any part of, the Collateral or (ii) consent to the
creation of any restriction applicable to the Collateral Agent on the sale,
assignment, transfer or other disposition by the Collateral Agent of any of the
Collateral (except as provided in this Agreement).
SECTION 4.05. Events of Default, Etc. During the period during
which an Event of Default shall have occurred and be continuing:
(a) the Collateral Agent shall have all of the rights and
remedies with respect to the Collateral of a secured party under the Uniform
Commercial Code (whether or not said Code is in effect in the jurisdiction where
the rights and remedies are asserted) and such additional rights and remedies to
which a secured party is entitled under the laws in effect in any jurisdiction
where any rights and remedies hereunder may be asserted, including, without
limitation, the right, to the maximum extent permitted by law, to exercise all
voting, consensual and other powers of ownership pertaining to the Collateral as
if the Collateral Agent were the sole and absolute owner thereof (and the
Pledgor agrees to take all such action as may be appropriate to give effect to
such right);
(b) the Collateral Agent in its discretion may, in its name or in
the name of the Pledgor or otherwise, demand, ▇▇▇ for, collect or receive any
money or property at any time payable or receivable on account of or in exchange
for any of the Collateral, but shall be under no obligation to do so; and
(c) the Collateral Agent may, upon 30 days' prior written notice
to the Pledgor of the time and place, with respect to the Collateral or any part
thereof that shall then be or shall thereafter come into the possession, custody
or control of the Secured Parties or any of their respective agents, sell,
lease, assign or otherwise dispose of all or any part of the Collateral, at such
place or places as the Collateral Agent deems best, and for cash or for credit
or for future delivery, at public or private sale, without demand of performance
or notice of intention to effect any such disposition or of the time or place
thereof (except such notice as is required above or by applicable statute and
cannot be waived), and any Secured Party or anyone else may be the purchaser,
lessee, assignee or recipient of any or all of the Collateral so disposed of at
any public sale (or, to the extent permitted by law, at any private sale) and
thereafter hold the same absolutely, free from any claim or right of whatsoever
kind, including any right or equity of redemption (statutory or otherwise), of
the Pledgor, any such demand, notice and right or equity being hereby expressly
waived and released. The Collateral Agent may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for the sale, and such sale
may be made at any time or place to which the sale may be so adjourned.
The proceeds of each collection, sale or other disposition under
this Section shall be applied in accordance with Section 4.08.
The Pledgor recognize that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Collateral Agent may be compelled, with respect to any sale
of all or any part of the Collateral, to limit purchasers to those who will
agree, among other things, to acquire the Collateral for their own account, for
investment and not with a view to the distribution or resale thereof. The
Pledgor acknowledge
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that any such private sales may be at prices and on terms less favorable to the
Collateral Agent than those obtainable through a public sale without such
restrictions, and, notwithstanding such circumstances, agree that any such
private sale shall be deemed to have been made in a commercially reasonable
manner and that the Collateral Agent shall have no obligation to engage in
public sales and no obligation to delay the sale of any Collateral for the
period of time necessary to permit the Company or issuer thereof to register it
for public sale.
SECTION 4.06. Removals, Etc. Without at least 30 days' prior
written notice to the Collateral Agent, the Pledgor shall not (i) maintain any
of its books and records with respect to the Collateral at any office or
maintain its principal place of business at any place other than at the address
indicated beneath its signature hereto or (ii) change its corporate name, or the
name under which it does business, from the name shown on the signature pages
hereto.
SECTION 4.07. Private Sale. No Secured Party shall incur any
liability as a result of the sale of the Collateral, or any part thereof, at any
private sale pursuant to Section 4.05 conducted in a commercially reasonable
manner. The Pledgor hereby waives any claims against the Secured Parties arising
by reason of the fact that the price at which the Collateral may have been sold
at such a private sale was less than the price that might have been obtained at
a public sale or was less than the aggregate amount of the Secured Obligations,
even if the Collateral Agent accepts the first offer received and does not offer
the Collateral to more than one offeree.
SECTION 4.08. Application of Proceeds. Except as otherwise herein
expressly provided, the proceeds of any collection, sale or other realization of
all or any part of the Collateral pursuant hereto, and any other cash at the
time held by the Collateral Agent under this Agreement, shall be applied by the
Collateral Agent:
First, to the payment of the costs and expenses of such
collection, sale or other realization, including reasonable
out-of-pocket costs and expenses of the Collateral Agent and the
reasonable fees and expenses of its agents and counsel, and all
reasonable expenses incurred and advances made by the Collateral Agent
in connection therewith;
Next, to the payment in full of the Secured Obligations, in each
case equally and ratably in accordance with the respective amounts
thereof then due and owing or as the Lenders holding the same may
otherwise agree; and
Finally, to the payment to the Pledgor, or its successors or
assigns, or as a court of competent jurisdiction may direct, of any
surplus then remaining.
As used in this Article IV, "proceeds" of Collateral shall mean
cash, securities and other property realized in respect of, and distributions in
kind of, Collateral, including any thereof received under any reorganization,
liquidation or adjustment of debt of the Pledgor or any issuer of or obligor on
any of the Collateral.
SECTION 4.09. Attorney-in-Fact. Without limiting any rights or
powers granted by this Agreement to the Collateral Agent while no Event of
Default has occurred and is continuing, upon the occurrence and during the
continuance of any Event of Default the Collateral Agent is hereby appointed the
attorney-in-fact of the Pledgor for the purpose of carrying out the provisions
hereof and taking any action and executing any instruments that the
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Collateral Agent may deem necessary or advisable to accomplish the purposes
hereof, which appointment as attorney-in-fact is irrevocable and coupled with an
interest. Without limiting the generality of the foregoing, so long as the
Collateral Agent shall be entitled under this Article IV to make collections in
respect of the Collateral, the Collateral Agent shall have the right and power
to receive, endorse and collect all checks made payable to the order of the
Pledgor representing any dividend, payment or other distribution in respect of
the Collateral or any part thereof and to give full discharge for the same.
SECTION 4.10. Perfection. Prior to or concurrently with the
execution and delivery of this Agreement, the Pledgor shall (i) file such
financing statements and other documents in such offices as the Collateral Agent
may request to perfect the security interests granted in Article III and (ii)
deliver to the Collateral Agent any certificates representing the Collateral,
accompanied by undated stock powers duly executed in blank.
SECTION 4.11. Termination. Upon the earlier of (a) the date on
which all Secured Obligations shall have been paid in full and the Commitments
of the Lenders under the Credit Agreement shall have expired or been terminated
and (b) the effective date of the transfer of the FCC License to the Company or
any of its Subsidiaries pursuant to Section 18.H of the Space System Contract,
this Agreement shall terminate and all rights to the Collateral shall revert to
the Pledgor, and the Collateral Agent shall forthwith cause to be assigned,
transferred and delivered, against receipt but without any recourse, warranty or
representation whatsoever, any remaining Collateral and money received in
respect thereof, to or on the order of the Pledgor.
SECTION 4.12. Further Assurances. The Pledgor agrees that, from
time to time upon the written request of the Collateral Agent, the Pledgor will
execute and deliver such further documents and do such other acts and things as
the Collateral Agent may reasonably request in order fully to effect the
purposes of this Agreement.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. No Waiver. No failure on the part of the Collateral
Agent or any other Secured Party to exercise, and no course of dealing with
respect to, and no delay in exercising, any right, power or remedy hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise by
the Collateral Agent or any other Secured Party of any right, power or remedy
hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies herein are cumulative and are not
exclusive of any remedies provided by law.
SECTION 5.02. Notices. All notices, requests, consents and
demands hereunder shall be in writing and telecopied or delivered to the
intended recipient at the "Address for Notices" specified beneath its name on
the signature pages hereof or, as to any party, at such other address as shall
be designated by such party in a notice to each other party. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have been
duly given when transmitted by telecopier or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
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SECTION 5.03. Expenses. The Pledgor agrees to reimburse each of
the Lenders and the Collateral Agent for all reasonable costs and expenses of
the Lenders and the Collateral Agent (including, without limitation, the
reasonable fees and expenses of legal counsel) in connection with (a) any
enforcement proceeding hereunder, including, without limitation, all manner of
participation in or other involvement with (i) performance by the Collateral
Agent of any obligations of the Pledgor in respect of the Collateral that the
Pledgor have failed or refused to perform, (ii) bankruptcy, insolvency,
receivership, foreclosure, winding up or liquidation proceedings, or any actual
or attempted sale, or any exchange, enforcement, collection, compromise or
settlement in respect of any of the Collateral, and for the care of the
Collateral and defending or asserting rights and claims of the Collateral Agent
in respect thereof, by litigation or otherwise, (iii) judicial or regulatory
proceedings and (iv) workout, restructuring or other negotiations or proceedings
(whether or not the workout, restructuring or transaction contemplated thereby
is consummated) and (b) the enforcement of this Section, and all such costs and
expenses shall be Secured Obligations entitled to the benefits of the collateral
security provided pursuant to Article III.
SECTION 5.04. Amendments, Etc. The terms of this Agreement may be
waived, altered or amended only by an instrument in writing duly executed by the
Pledgor and the Collateral Agent. Any such amendment or waiver shall be binding
upon the Collateral Agent, each other Secured Party and the Pledgor.
SECTION 5.05. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the respective successors and assigns
of the Pledgor, the Collateral Agent and each other Secured Party, provided,
however, that the Pledgor shall not assign or transfer its rights hereunder
without the prior written consent of the Collateral Agent.
SECTION 5.06. Captions. The caption and section headings used
herein are for convenience of reference only, are not part of this Agreement and
shall not affect the construction of, or be taken into consideration in
interpreting, this Agreement.
SECTION 5.07. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract.
SECTION 5.08. Governing Law; Jurisdiction; Consent to Service of
Process.
(a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) The Pledgor hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment
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in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Agreement shall affect any right that the Collateral Agent
or any other Secured Party may otherwise have to bring any action or proceeding
relating to this Agreement against the Pledgor or its properties in the courts
of any jurisdiction.
(c) The Pledgor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) To the extent that the Pledgor may be or become entitled, in
any jurisdiction in which judicial proceedings may at any time be commenced with
respect to this Agreement, to claim for itself or its property or revenues any
immunity from suit, court jurisdiction, attachment prior to judgment, attachment
in aid of execution of a judgment, execution of a judgment or from any other
legal process or remedy relating to its obligations under this Agreement and to
the extent that in any such jurisdiction there may be attributed such an
immunity (whether or not claimed), the Pledgor hereby irrevocably agrees not to
claim and hereby irrevocably waives such immunity to the fullest extent
permitted by the laws of such jurisdiction.
SECTION 5.09. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 5.10. No Third Party Beneficiaries. The agreements of the
parties hereto are solely for the benefit of the Pledgor, the Collateral Agent
and the other Secured Parties, and no other Person (including, without
limitation, the Company) shall have any rights hereunder.
SECTION 5.11. Agents and Attorneys-in-Fact. The Collateral Agent
may employ agents and attorneys-in-fact in connection herewith and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith.
SECTION 5.12. Severability. Any provision of this Agreement held
to be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality
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and enforceability of the remaining provisions hereof; and the invalidity of a
particular provision in a particular jurisdiction shall not invalidate such
provision in any other jurisdiction.
SECTION 5.13. Security Interest Absolute. The rights and remedies
of the Collateral Agent hereunder, the Liens created hereby and the obligations
of the Pledgor hereunder are absolute, irrevocable and unconditional,
irrespective of:
(a) the validity or enforceability of any of the Secured
Obligations or any Credit Document or any other agreement or instrument relating
thereto;
(b) any amendment to, waiver of, consent to or departure from, or
failure to exercise any right, remedy, power or privileges under or in respect
of, any of the Secured Obligations, any Credit Document or any other agreement
or instrument relating thereto;
(c) the acceleration of the maturity of any of the Secured
Obligations or any other modification of the time of payment thereof;
(d) any substitution, release or exchange of any other security
for or guarantee of any of the Secured Obligations or the failure to create,
preserve, validate, perfect or protect any other Lien granted to, or purported
to be granted to, or in favor of, the Collateral Agent or any other Secured
Party; or
(e) any other event or circumstance whatsoever which might
otherwise constitute a legal or equitable discharge of a surety or a guarantor,
it being the intent of this Section that the obligations of the Pledgor
hereunder shall be absolute, irrevocable and unconditional under any and all
circumstances.
SECTION 5.14. Subrogation. The Pledgor shall not exercise, and
hereby irrevocably waives, any claim, right or remedy that it may now have or
may hereafter acquire against the Company arising under or in connection with
this Agreement, including, without limitation, any claim, right or remedy of
subrogation, contribution, reimbursement, exoneration, indemnification or
participation arising under contract, by Government Rule or otherwise in any
claim, right or remedy of the Collateral Agent or any other Secured Party
against the Company or any other Person or any Collateral which the Collateral
Agent or any other Secured Party may now have or may hereafter acquire. If,
notwithstanding the preceding sentence, any amount shall be paid to the Pledgor
on account of such claim, right or remedy at any time when any of the Secured
Obligations shall not have been paid in full, such amount shall be held by the
Pledgor in trust for the Collateral Agent and the other Secured Parties,
segregated from other funds of the Pledgor, and be turned over to the Collateral
Agent in the exact form received by the Pledgor (duly endorsed by the Pledgor to
the Collateral Agent, if required), to be applied against the Secured
Obligations, whether matured or unmatured, in accordance with this Agreement and
the Depositary Agreement.
SECTION 5.15. Reinstatement. This Agreement and the Lien created
hereunder shall automatically be reinstated if and to the extent that for any
reason any payment by or on behalf of the Company in respect of the Secured
Obligations is rescinded or must otherwise be restored by any holder of the
Secured Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and the Pledgor shall indemnify the Collateral
Agent
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and each other Secured Party on demand for all reasonable costs and expenses
(including, without limitation, fees of counsel) incurred by the Collateral
Agent or such other Secured Party in connection with such rescission or
restoration.
SECTION 5.16. FCC Approval. Notwithstanding any other provision
of this Agreement, no action shall be taken hereunder by the Collateral Agent or
any Lender with respect to any item of Collateral that would constitute or
result in any assignment of the FCC License or any change of control of the
holder of the FCC License without first obtaining prior approval of the FCC, if,
under then existing law, regulations and FCC policies, such assignment or change
of control would require the prior approval of the FCC. The Pledgor agrees to
take (or to cause the Pledgor's Subsidiary which holds the FCC License to take),
at its expense, any action that the Collateral Agent may reasonably request in
order to obtain from the FCC such approval as may be necessary (a) to enable the
Collateral Agent to exercise and enjoy the full rights and benefits granted to
the Collateral Agent by this Agreement and (b) for any action or transaction
contemplated by this Agreement for which such approval is or shall be required
by law, and specifically, without limitation, upon request by the Collateral
Agent, to prepare, sign and file with the FCC the assignor's or transferor's
portion of any application or applications for consent to the assignment of any
license or transfer of control necessary or appropriate under the FCC's rules
and regulations, or for approval of any sale of the Collateral provided by this
Agreement by or on behalf of the Collateral Agent or any assumption by the
Collateral Agent of voting rights relating thereto effected in accordance with
the terms hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed and delivered as of the day and year first above
written.
PLEDGOR
MOTOROLA, INC.
By
---------------------------
Name:
Title:
Address for Notices:
Motorola, Inc.
Corporate Offices
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Senior Vice President, Finance
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
with copies to:
Motorola, Inc.
Corporate Offices
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
and
Motorola, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President -
Law Department, Iridium Matters
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
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COLLATERAL AGENT
THE CHASE MANHATTAN BANK,
as Collateral Agent
By
---------------------------
Name:
Title:
Address for Notices:
The Chase Manhattan Bank,
as Collateral Agent
Loan and Agency Services Group
1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Winslowe Ogbourne
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇/▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇/▇▇▇-▇▇▇-▇▇▇▇
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ANNEX 1
PLEDGED STOCK
Certificate Registered
Issuer No. Owner Number of Shares
------ --- ----- ----------------
Space System 1 Motorola, Inc. 1000 shares of common
License, Inc. stock, par value $.01
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EXHIBIT I
[FORM OF BORROWING REQUEST]
BORROWING REQUEST
Reference is made to the Senior Secured Credit Agreement dated as
of December 23, 1998 (as amended, supplemented or otherwise modified and in
effect from time to time, the "Credit Agreement") among Iridium Operating LLC, a
Delaware limited liability company (the "Company"), the lenders party thereto
(the "Lenders"), Chase Securities Inc. and Barclays Bank PLC, as Global Lead
Arrangers, The Chase Manhattan Bank, as Administrative Agent (the
"Administrative Agent") and as Collateral Agent and Barclays Bank PLC, as
Documentation Agent. Unless otherwise defined in this Certificate, capitalized
terms used but not defined herein shall have the meanings given to such terms in
the Credit Agreement.
The Company hereby requests a Borrowing from Lenders under the
Credit Agreement as follows:
1. The aggregate principal amount of such Borrowing:
$__________
2. The date of such Borrowing: ____________, 199_
3. Such Borrowing(1) is a (check one): __ ABR Borrowing
__ Eurodollar Borrowing
4. If such Borrowing is a Eurodollar Borrowing, the initial
Interest Period therefor is _______ month(s).
The undersigned officer, in his/her capacity as an officer of the
Company, and the Company certify that:
(i) the representations and warranties of the Company set forth
in the Credit Agreement and of the Company and each other Credit Party
set forth in each of the other Credit Documents to which it is a party
are true and correct on and as of the date hereof to the same extent as
though made on and as of the date hereof, except to the extent such
representations and warranties are stated to have been made solely as of
an earlier date, in which case such representations and warranties were
true and correct on and as of such earlier date;
(ii) to the best knowledge of the Company, the representations
and warranties of each Transaction Party (other than any Credit Party)
set forth in each of the Credit Documents to which such other
Transaction Party is a party are true and correct on and as of the date
hereof to the same extent as though made on and as of the date hereof,
except to the extent such representations and warranties are stated to
have been made solely as
--------
(1) The initial Borrowing on the Closing Date is required to be
an ABR Borrowing.
Borrowing Request
298
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of an earlier date, in which case such representations and warranties
were true and correct on and as of such earlier date; and
(iii) at time of and immediately after giving effect to such
Borrowing, no Default has occurred and is continuing;
(iv) after giving effect to such Borrowing, the aggregate
Exposure of the Lenders will not exceed the Commitments; and
(v) each condition precedent specified in Appendix 1 to the
Credit Agreement has been satisfied as of the date hereof (or will be
satisfied on the date of such Borrowing).
Dated: ________, 199_ IRIDIUM OPERATING LLC
By
---------------------
Name:
Title:
Borrowing Request
