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EXHIBIT 10.34
(EXHIBIT D TO THE CREDIT 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"), certain lenders, the Administrative Agent, The Chase Manhattan Bank,
as Collateral Agent, and Barclays Capital, the investment banking division of
Barclays Bank PLC, as Documentation Agent are parties to a Credit Agreement
dated as of December 19, 1997 (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 $1,000,000,000.
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 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,
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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 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
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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;
(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.
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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 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
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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.
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
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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
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 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 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.
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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, the
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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
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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.
(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.
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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.
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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:
Subsidiary Guarantee Agreement
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[REPEAT FOR EACH OTHER SUBSIDIARY
GUARANTOR (IF ANY):]
[NAME OF GUARANTOR]
By ________________________
Name:
Title:
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ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK,
as Administrative Agent
By ________________________
Name:
Title:
Subsidiary Guarantee Agreement
