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EXHIBIT 10.29
APPENDIX 2
to
Credit Agreement
CONDITIONS PRECEDENT
PART A: CONDITIONS PRECEDENT TO THE DISBURSEMENT OF THE TERM
LOANS UNDER SECTION 2.01(a)
1. Credit Agreement. This Agreement, duly executed and delivered
by each of the Company, the Agents and the Lenders, and this
Agreement shall have become effective pursuant to Section
11.13.
2. Borrowing Request. A Borrowing Request with respect to such
Term Loans.
3. Depositary Agreement. The Depositary Agreement, duly executed
and delivered by the Company, the Collateral Agent and the
Depositary Bank.
4. Filings, Registrations and Recordings. Evidence that all
filings (including applicable Uniform Commercial Code
financing statements), recordings, registrations and similar
action under the Depositary Agreement 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 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
the Depositary Agreement has been made, or arrangements for
any of the foregoing satisfactory to the Collateral Agent have
been made.
5. Management Services Agreement. A certified copy of the
Management Services Agreement as in effect, duly executed and
delivered by Iridium World Communications Ltd., Iridium LLC
and the Company.
6. Asset Transfer Agreement. The Asset Transfer Agreement, duly
executed and delivered by Iridium LLC and the Company, and
evidence that the transfer of substantially all of the assets
of Iridium LLC to the Company contemplated thereby has been
effected pursuant thereto.
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PART B: CONDITIONS PRECEDENT TO THE DISBURSEMENT OF THE TERM
LOANS FROM THE PRE-FUNDING ACCOUNT
I. DOCUMENTS AND INFORMATION TO BE DELIVERED BY THE CREDIT PARTIES
1. Security Agreement. The Security Agreement, duly executed and
delivered by the Company, the Subsidiary Guarantors and the
Collateral Agent.
2. Subsidiary Guarantee Agreement. The Subsidiary Guarantee
Agreement, duly executed and delivered by each Subsidiary
Guarantor and the Administrative Agent.
3. Promissory Notes. If requested by any Lender, the promissory
notes or promissory notes for such Lender each duly executed
and delivered by the Company.
4. Mortgages. The Mortgage(s) with respect to each parcel of real
property or leasehold interest of the Company or any of its
Subsidiaries identified on Part A of Schedule II to the Credit
Agreement required to be subject to a Mortgage as of the
Closing Date, each duly executed and delivered by the Company
or the relevant Subsidiary, as the case may be.
5. Financial Statements. Copies of the most recent audited and
(if any) unaudited consolidated financial statements of the
Company required to delivered under Section 5.01 of the Credit
Agreement.
6. Company Secretary's Certificate. A certificate of the
Secretary or an Assistant Secretary of the Company, dated the
Closing Date, as to: (i) the Company 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 Document
(and the Agents and each Lender may conclusively rely on such
officer's certificate until it receives notice in writing from
the Company).
7. Subsidiary Secretary's Certificate. A certificate of the
Secretary or an Assistant Secretary of each Subsidiary, dated
the Closing Date, as to: (i) the limited liability company or
charter; (ii) resolutions relating to the execution, delivery
and performance by such Subsidiary of the Credit Documents to
which it is a party; (iii) incumbency and specimen signature
of each officer of the Subsidiary 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 such Subsidiary).
8. Company Responsible Officer's Certificate. A certificate of a
Responsible Officer, dated the Closing Date, as to:
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(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 Project Party in each Credit Document to which it is a
party;
(iii) the absence of any Default;
(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;
(v) (i) the Senior Subordinated Notes shall be
outstanding as of the Closing Date and (ii) (x) the Company
shall have outstanding unsecured senior debt of at least
$1,900,000,000 in aggregate principal amount (of which up to
$350,000,000 may consist of Motorola's commitment to issue its
Guarantee of the Company's senior unsecured Indebtedness up to
$350,000,000 (inclusive of principal, interest and other
amounts)) and (y) the net cash proceeds thereof have been (or
in the case of such commitment, will be) applied by the
Company to the payment of Project Costs.
9. Subscriber Units. A letter from Motorola to Iridium as to the
supply of subscriber units in sufficient quantities to cover
at least the projected level of subscribers for the first year
of commercial operation for the Project and at a price
consistent with achievement of the Financial Projections.
10. Insurance. Certificates of insurance from the Company's
insurance brokers showing that (i) the Agents and the Lenders
are additional insureds under all liability insurance policies
of the Company and (ii) The Chase Manhattan Bank, as
Collateral Agent, is named as loss payee under all casualty
insurance policies of the Company (including, without
limitation, the in-orbit insurance policies referred to in
Appendix 3) 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.
11. Stock Certificates. If the equity interests of any of the
Subsidiaries pledged to the Collateral Agent under any
Security Document to which any Credit Party is a party are
evidenced by a certificate, the Collateral Agent shall have
received such certificate(s) together with in each case an
undated stock power executed in blank, in order to create a
first priority perfected security interest in such equity
interests.
12. Filings, Registrations and Recordings. Evidence that all
filings (including, applicable, Uniform Commercial Code
financing statements), recordings,
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registrations and similar action under each Security Document
to which any Credit Party 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 by such Security
Document (except as may be provided therein) 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 arrangements for any of
the foregoing satisfactory to the Collateral Agent have been
made.
13. UCC Searches, Etc. Satisfactory results of UCC, tax and
judgment lien searches in each jurisdiction reasonably
requested by the Administrative Agent and under the names of
the Company, Iridium LLC and each other name reasonably
requested by the Administrative Agent.
14. Title Insurance, Etc. The issuance of a mortgagee title
insurance policy in respect of each of the properties subject
to the Mortgage(s) being entered into as of the Closing Date,
together with delivery of each of the related documentation
that complies with the requirements of Section 6.10(c).
15. Process Agent. Letter from one or more persons satisfactory to
the Administrative Agent accepting its appointment as process
agent in New York for each Credit Party under the relevant
Credit Documents.
16. 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 any Lender or any Agent 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
Arrangers and the Agents, and of each of the Independent
Advisors (to the extent that statements for such fees and
other amounts have been delivered to the Company).
17. Opinions of Counsel. The opinions of counsel to the Credit
Parties referred to below in Section VII of this Part A.
18. Other Documents. Receipt of such other documents,
certificates, instruments and information as the
Administrative Agent or special counsel to the Global
Arrangers may reasonably request.
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II. DOCUMENTS AND INFORMATION TO BE DELIVERED BY IRIDIUM LLC
1. Parent Security Agreement. The Parent Security Agreement, duly
executed and delivered by Iridium LLC and the Collateral
Agent.
2. Financial Statements. Copies of the most recent audited and
(if any) unaudited consolidated financial statements of
Iridium LLC referred to in Section 4.01 of the Parent Security
Agreement and unaudited quarterly consolidated financial
statements of Iridium LLC for each quarterly period ended
subsequent to such audited financial statements.
3. Iridium LLC Secretary's Certificate
A certificate of the Secretary or an Assistant Secretary of
Iridium LLC, dated the Closing Date, as to: (i) the Iridium
LLC Agreement as amended and in effect on the Closing Date
(including an amendment thereto pursuant to which the Iridium
LLC Members have consented to the assignment of the rights in
favor of Iridium LLC with respect to the 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 Document
(and the Agents and each Lender may conclusively rely on such
officer's certificate until it receives notice in writing from
Iridium LLC).
4. Iridium LLC Responsible 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;
(ii) the absence of any Default relating to
Iridium LLC; and
(iii) prior to the Closing Date, receipt by
Iridium LLC of aggregate net cash proceeds from the
issuance of equity of at least $1,985,000,000 (of
which up to $50,000,000 may consist of a receivable
from P.T. Bakrie Communications) and that such cash
proceeds have been fully applied by the Company to
the payment of Project Costs.
5. Stock Certificates. If the equity interests of the Company
pledged to the Collateral Agent under the Parent Security
Agreement are evidenced by a certificate, the Collateral Agent
shall have received such certificate(s) together with in each
case an undated stock power executed in blank, in order to
create a first priority perfected security interest in such
equity interests.
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6. Filings, Registrations and Recordings. Evidence that all
filings (including, applicable, Uniform Commercial Code
financing statements), recordings, registrations and similar
action under the Parent Security Agreement have been duly made
in order to create a first priority security interest in the
Collateral covered by the Parent Security Agreement (except as
may be provided therein) 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 the Parent Security Agreement has
been made, or arrangements for any of the foregoing
satisfactory to the Collateral Agent have been made.
7. 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 relevant Credit
Documents.
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III. DOCUMENTS AND INFORMATION TO BE DELIVERED BY MOTOROLA
1. Motorola Consent. The Motorola Consent, duly executed and
delivered by each of Motorola, the Company, the Administrative
Agent and the Collateral Agent.
2. Motorola Pledge Agreement. If required by Section 4.01 of the
Motorola Consent to be executed and delivered as of the
Closing Date, the Motorola Pledge Agreement, duly executed and
delivered by Motorola and the Collateral Agent.
3. Stock Certificates. At the time of the entering into of the
Motorola Pledge Agreement, the stock certificate evidencing
the capital stock of the Subsidiary of Motorola holding the
FCC License pledged under the Motorola Pledge Agreement,
together with an undated stock power executed in blank, and
Motorola shall have taken all other action under the Motorola
Pledge Agreement reasonably requested by the Collateral Agent
in order to create a first priority security interest in the
Collateral covered thereby.
4. FCC License. A certified copy of the FCC License.
5. 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 Development of the Project.
6. Financial Statements of Motorola. Copies of the consolidated
financial statements of Motorola referred to in Section 2.02
of the Motorola Consent.
7. 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 it is party; and (ii) the absence of any
Motorola Default.
8. 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).
9. Opinions of Counsel. The opinions of counsel to Motorola
referred to below in Section VII of this Part A.
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IV. PRINCIPAL PROJECT DOCUMENTS AND CERTAIN OTHER DOCUMENTS
1. Space System Contract. A certified copy of the Space System
Contract as amended and in effect on the Closing Date, duly
executed and delivered by each of the parties thereto.
2. Terrestrial Network Development Contract. A certified copy of
the Terrestrial Network Development Contract as amended and in
effect on the Closing Date, duly executed and delivered by
each of the parties thereto.
3. O&M Contract. A certified copy of the O&M Contract as amended
and in effect on the Closing Date, duly executed and delivered
by each of the parties thereto.
4. Gateway Authorization Agreements. Certified copies of each
Gateway Authorization Agreement as amended and in effect on
the Closing Date, in each case duly executed and delivered by
each of the parties thereto.
5. IBSS Agreement. A certified copy of the IBSS Agreement as
amended and in effect on the Closing Date, duly executed and
delivered by each of the parties thereto.
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V. INDEPENDENT ADVISORS REPORTS
1. Technical Advisor. A copy of the report of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Inc., the Independent Technical Advisor, dated October 8, 1997
(delivered in connection with the Information Memorandum).
2. Market Consultant. A copy of the report of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
L.L.P., the Independent Market Consultant, appearing in
Section 9 of the Information Memorandum.
3. Insurance Advisor. A written report of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ of New
Jersey, Inc., the Independent Insurance Advisor, dated on or
prior to the Closing Date, as to the adequacy of the insurance
program of the Company and its Subsidiaries and confirming
compliance thereof with the insurance requirements under
Section 8.01.
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VI. CERTAIN OTHER DOCUMENTS AND INFORMATION
1. Assignment Consents. A consent to the assignment by the
Company of its rights in each Principal Project Document
pursuant to the Security Agreement, duly executed and
delivered by each Project Party party thereto (other than the
Credit Parties. Motorola and the Secured Parties), in form and
substance satisfactory to the Administrative Agent.
2. Certain Project 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.
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VII. LEGAL OPINIONS
1. Opinion(s) of Counsel to the Credit Parties and Iridium LLC.
Opinions of counsel to the Credit Parties in form and
substance satisfactory to the Administrative Agent.
2. Opinion of Counsel to Motorola. Opinions of counsel to
Motorola in form and substance satisfactory to the
Administrative Agent.
3. Opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇. An opinion of
▇▇▇▇▇▇▇, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special New York counsel to
the Global Arrangers and the Agents, in form and substance
satisfactory to the Administrative Agent.
4. Other Opinions. If any Mortgage is being executed and
delivered as of the Closing Date, an opinion of counsel to the
Company or the relevant Subsidiary in the jurisdiction where
the property subject to such Mortgage is located in form and
substance satisfactory to the Administrative Agent.
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VIII. TECHNICAL AND REGULATORY CONDITIONS
1. Progress Certificate.(1) A Progress Certificate, substantially
in the form of Exhibit I-1, duly completed and executed by a
Responsible Officer, certifying (in the form specified in
Exhibit I-1 and the basis for which certifications shall be
satisfactory to the Administrative Agent) as to:
(i) achievement of, or satisfaction with,
each of the technical requirements for "Stage 1" as
specified in Annex A to this Appendix 2 that are
required to be met on or prior to the Closing Date;
(ii) minimum regulatory approvals and PSTN
access for "Stage 1" as specified in Attachment 3 of
Annex A to this Appendix 2 required to be achieved on
or prior to the Closing Date (and providing and/or
attaching the legal opinions and other information
and/or documentation with respect thereto
contemplated by Exhibit I-1); and
(iii) the Company's compliance with the
requirements of Section 8.04 as of the Closing Date.
2. Verification of Independent Technical Advisor. A certificate
of the Independent Technical Advisor, in the form of Exhibit
I-2, duly completed and executed, with respect to the
achievement of, or satisfaction with, each of the technical
requirements for "Stage 1" as specified in Annex A to this
Appendix 2 that are required to be met on or prior to the
Closing Date (and attaching copies of the related statements
of Motorola referred to therein).
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(1) This Progress Certificate, fully competed (including completed
schedules together with all relevant attachments) other than the
execution and dating of this Certificate, shall be required to be
delivered to the Administrative Agent not less than 5 Business Days
prior to the date of the Borrowing Request.
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PART C: CONDITIONS PRECEDENT TO PRE-COMMERCIAL ACTIVATION
REVOLVING LOANS (I.E. REVOLVING LOANS UP TO BUT NOT
EXCEEDING THE FIRST $400,000,000)(2)
1. Borrowing Request. A Borrowing Request with respect to such
Borrowing.
2. Progress Certificate. A Progress Certificate,(3) substantially
in the form of Exhibit I-1, duly completed and executed by a
Responsible Officer, certifying (in the form specified in
Exhibit I-1 and the basis for which certifications shall be
satisfactory to the Administrative Agent) as to:
(i) achievement of, or satisfaction with,
each of the technical requirements for "Stage 2" or
"Stage 3", as applicable to such Borrowing, as
specified in Annex A to this Appendix 2 that are
required to be met on or prior to the date of such
Borrowing;
(ii) minimum regulatory approvals for "Stage
2" or "Stage 3", as applicable to such Borrowing, as
specified in Attachment 3 of Annex A to this Appendix
2 required to be achieved on or prior to the date of
such Borrowing (and providing and/or attaching the
legal opinions and other information and/or
documentation with respect thereto contemplated by
Exhibit I-1); and
(iii) the Company's compliance with the
requirements of Section 8.04 as of the date of such
Borrowing.
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(2) The conditions precedent set forth below in this Part C shall be
satisfied in connection with each Borrowing under "Stages 2 and 3" (as
such Stages are identified in Annex A to this Appendix 2). In
connection with any Borrowing under each such Stage other than the
first Borrowing thereunder, in lieu of items 2 and 3 above, the Company
may provide a certificate of a Responsible Officer, in form and
substance satisfactory to the Administrative Agent, that the technical
and regulatory conditions precedent for such Stage, as certified to by
the Company in the Progress Certificate delivered for such initial
Borrowing, remain satisfied as of the date of such Borrowing (together
with, to the extent the Company shall be relying on information that
differs from the information that served as the basis for the
certifications in such initial Progress Certificate, such other
information (and any related documentation) in a form satisfactory to
the Administrative Agent and consistent with the requirements for such
initial Progress Certificate).
(3) This Progress Certificate, fully competed (including completed
schedules together with all relevant attachments) other than the
execution and dating of this Certificate, shall be required to be
delivered to the Administrative Agent not less than 5 Business Days
prior to the date of the Borrowing Request.
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3. Verification of Independent Technical Advisor. A certificate
of the Independent Technical Advisor, substantially in the
form of Exhibit I-2, duly completed and executed, with respect
to the achievement of, or satisfaction with, each of the
technical requirements for "Stage 2" or "Stage 3", as
applicable to such Borrowing, as specified in Annex A to this
Appendix 2 that are required to be met on or prior to the date
of such Borrowing (and attaching copies of the related
statements of Motorola referred to therein).
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PART D: CONDITIONS PRECEDENT TO POST-COMMERCIAL ACTIVATION
REVOLVING LOANS (I.E. REVOLVING LOANS IN EXCESS OF
$400,000,000)(4)
1. Borrowing Request. A Borrowing Request with respect to such
Borrowing.
2. Commercial Activation. Evidence that Commercial Activation
shall have occurred.
3. Progress Certificate. A Progress Certificate,(5) substantially
in the form of Exhibit I-3, duly completed and executed by a
Responsible Officer, certifying (in the form specified in
Exhibit I-3 and the basis for which certifications shall be
satisfactory to the Administrative Agent) as to:
(i) all regulatory approvals (including PSTN
access) necessary for commercial operation in each of
the countries specified in Attachment 3 of Annex A to
this Appendix 2 (and providing and/or attaching the
legal opinions and other information and/or
documentation with respect thereto contemplated by
Exhibit I-3); and
(ii) the Company's compliance with the
requirements of Section 8.04 as of the date of such
Borrowing.
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(4) The conditions precedent set forth below in this Part D shall be
satisfied in connection with each Borrowing under the "Post-Commercial
Activation Stage" (as such Stage is identified in Annex A to this
Appendix 2). In connection with any Borrowing under such Stage other
than the first Borrowing thereunder, in lieu of item 3 above, the
Company may provide a certificate of a Responsible Officer, in form and
substance satisfactory to the Administrative Agent, that the technical
and regulatory conditions precedent for such Stage, as certified to by
the Company in the Progress Certificate delivered for such initial
Borrowing, remain satisfied as of the date of such Borrowing (together
with, to the extent the Company shall be relying on information that
differs from the information that served as the basis for the
certifications in such initial Progress Certificate, such other
information (and any related documentation) in a form satisfactory to
the Administrative Agent and consistent with the requirements for such
initial Progress Certificate).
(5) This Progress Certificate, fully competed (including completed
schedules together with all relevant attachments) other than the
execution and dating of this Certificate, shall be required to be
delivered to the Administrative Agent not less than 5 Business Days
prior to the date of the Borrowing Request.
Appendix 2 - Conditions Precedent