1
EXHIBIT 10.23
STRICTLY CONFIDENTIAL EXECUTION COPY
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IRIDIUM LLC
$750,000,000 SENIOR SECURED INTERIM CREDIT FACILITY
SUMMARY OF INDICATIVE TERMS AND CONDITIONS
JUNE 16, 1997
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CHASE SECURITIES INC. BZW - THE INVESTMENT BANKING
DIVISION OF BARCLAYS BANK PLC
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NOTICE
THIS SUMMARY OF TERMS AND CONDITIONS IS CONFIDENTIAL AMONG
IRIDIUM LLC, CHASE SECURITIES INC., THE CHASE MANHATTAN BANK,
BARCLAYS BANK PLC AND THEIR RESPECTIVE LEGAL COUNSEL AND
CONSULTANTS AND MAY NOT BE DISCLOSED TO ANY OTHER PERSON
WITHOUT THE PRIOR WRITTEN CONSENT OF IRIDIUM LLC, CHASE
SECURITIES INC. AND BARCLAYS BANK PLC.
INDEX
PART PAGE
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I. PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. CREDIT FACILITY . . . . . . . . . . . . . . . . . . . . . . 2
III. CERTAIN PAYMENT PROVISIONS; INTEREST RATES; FEES . . . . . . 2
IV. COLLATERAL; RESERVE CAPITAL CALL OBLIGATIONS; SUBSIDIARY
GUARANTEES; INSURANCE; PROJECT ACCOUNTS . . . . . . . . . . 5
V. CERTAIN CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . 8
VI. CERTAIN DOCUMENTATION MATTERS . . . . . . . . . . . . . . . 8
ANNEXES
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Annex 1 Definitions
Annex 2 Conditions Precedent
I. Conditions to the Initial Loans
II. Conditions to each Loan
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EXHIBIT 10.23
STRICTLY CONFIDENTIAL
IRIDIUM LLC
$750,000,000 SENIOR SECURED INTERIM CREDIT FACILITY
SUMMARY OF INDICATIVE TERMS AND CONDITIONS
June 16, 1997
Capitalized terms used and not defined in this
Summary shall have the respective meanings
assigned thereto in Annex 1 hereto.
I. PARTIES
BORROWER: Iridium LLC (or, if a
subsidiary of Iridium LLC
shall be established to hold
all of the assets of the
Iridium project, such
subsidiary) (the "BORROWER"
or "IRIDIUM").
GLOBAL FINANCING ADVISOR: Chase Securities Inc.
CO-FINANCING ADVISOR: BZW.
GLOBAL
ARRANGERS: Chase Securities Inc. and
BZW.
LEAD ARRANGERS: A group of leading financial
institutions, including the
Global Arrangers, selected by
the Borrower and the Global
Arrangers.
LENDERS: The banks, financial
institutions and other
entities, including Chase and
Barclays, selected in the
syndication effort for the
Credit Facility.
ADMINISTRATIVE AGENT: The Chase Manhattan Bank.
DOCUMENTATION AGENT: BZW.
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II. CREDIT FACILITY
TYPE AND AMOUNT: Revolving Credit Facility in
a principal amount of up to
$750,000,000 (the "CREDIT
FACILITY").
USE OF PROCEEDS: The proceeds of the Loans
shall be used solely (i) to
finance Project costs (based
upon the approved
Construction Budget) relating
to the construction,
installation, testing and
completion of the IRIDIUM
System, including but not
limited to payments to
Motorola under the Space
System Contract and interest
on the Loans, and (ii) for
payment of certain fees and
expenses payable by the
Borrower in connection with
the Credit Facility.
AVAILABILITY: Subject to the terms and
conditions described below
under "Conditions to
Availability", drawdowns will
be permitted during the
period from the date of
execution of the Credit
Agreement (assumed to be
September 30, 1997) to but
not including the date 17
months after such execution
date but in any event no
later than December 31, 1998
(or February 28, 1999, if the
Borrower demonstrates (not
later than October 31, 1998)
that it has committed or
available funding (as
certified by a senior
financial officer of the
Borrower) to meet its
projected capital and
operating expenses under the
Iridium Business Plan through
such extended date) (the
"COMMITMENT TERMINATION
DATE"). The drawdowns under
the Credit Facility will be
tied to an agreed schedule
consistent with the
achievement or satisfaction
of the technical and other
requirements specified in
Appendix A hereto.
FINAL MATURITY: The Commitment Termination
Date.
AMORTIZATION: None. The Loans will
payable in full at the Final
Maturity.
III. CERTAIN PAYMENT PROVISIONS; INTEREST RATES; FEES
OPTIONAL PREPAYMENTS AND
COMMITMENT REDUCTIONS: Loans may be prepaid and
Commitments may be
permanently reduced by the
Borrower, in whole or in
part, with prior notice and
without premium or penalty
(except for LIBOR breakage
costs, if applicable), in
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minimum amounts to be agreed
upon. Once so reduced, the
Commitments may not be
increased.
MANDATORY PREPAYMENTS AND
COMMITMENT REDUCTIONS: The following amounts shall
be applied to reduce the
Loans and Commitments (the
timing and prepayment
thresholds to be set forth in
the Credit Agreement):
(a) 100% of the net proceeds
received from the sale or
other disposition of the
assets of the Borrower or any
of its subsidiaries (except
for certain sales of property
in the ordinary course of
business and certain
replacements to be agreed);
(b) 100% of the net proceeds
received from the issuance of
equity or the issuance or
incurrence of debt by the
Borrower or any of its
subsidiaries, other than (i)
equity or other subordinated
debt (the terms of which
shall be satisfactory to the
Lenders) the net proceeds of
which are used to fund
approved Project costs, (ii)
unsecured debt (the terms of
which shall be satisfactory
to the Lenders) in an
aggregate amount not
exceeding $1,875,000,000
(subject to review upon
completion of the initial
high-yield debt offering) and
(iii) de minimis amounts
received from the exercise of
warrants issued in connection
with the initial high yield
debt offering and employee
stock options.
(c) 100% of all property and
casualty insurance recoveries
by the Borrower or any of its
subsidiaries (unless, with
respect to any such recovery
up to an amount to be agreed
or as otherwise agreed by the
Lenders, the Borrower applies
or commits to apply the
proceeds for the repair or
replacement of the damaged
property);
(d) 100% of all condemnation
proceeds or similar awards
received by the Borrower or
any of its subsidiaries in
connection with any
governmental taking (unless,
with respect to any such
proceeds or award up to an
amount to be agreed or as
otherwise agreed by the
Lenders, the Borrower applies
or commits to apply the
proceeds or awards for the
replacement of the condemned
or taken property); and
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(e) 100% of certain payments
(e.g., liquidated damages)
from the Project Parties to
the Borrower pursuant to the
Project Documents.
All such amounts shall be
applied to the permanent
reduction of the Commitments
and/or the prepayment of the
Loans.
INTEREST RATE:
INTEREST RATE OPTIONS: The Borrower may elect that
all or a portion of the Loans
bear interest at a rate per
annum equal to:
the ABR plus the relevant
Interest Margin referred to
below; or
the Eurodollar Rate plus the
relevant Interest Margin
referred to below.
As used herein:
"ABR" means the higher of (i)
the rate of interest publicly
announced by Chase as its
prime rate in effect at its
principal office in New York
City (the "PRIME RATE") and
(ii) the federal funds
effective rate from time to
time plus 0.5%.
"EURODOLLAR RATE" means the
rate (grossed-up for maximum
statutory reserve
requirements for eurocurrency
liabilities) at which
eurodollar deposits for one,
two, three or six months (as
selected by the Borrower) are
offered by Chase in the
interbank eurodollar market.
INTEREST MARGINS: ABR Margin: 150 basis
points.
Eurodollar Margin: 275 basis
points.
The above margins will be
increased by 50 basis points
on October 1, 1998 and at the
end of each subsequent
three-month period.
INTEREST PAYMENT DATES: In the case of the Loans
bearing interest based upon
the ABR Rate ("ABR LOANS"),
quarterly in arrears.
In the case of the Loans
bearing interest based upon
the Eurodollar Rate
("EURODOLLAR LOANS"), on the
last day
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of each relevant interest
period and, in the case of
any interest period longer
than three months, on each
successive date three months
after the first day of such
interest period.
DEFAULT INTEREST: Overdue interest, fees and
other amounts shall bear
interest at 2% above the rate
applicable to ABR Loans.
COMMITMENT FEES: The Borrower shall pay a
commitment fee calculated at
the rate per annum equal to
50 basis points on the daily
average unused portion of the
Commitments from and after
the date of execution of the
Credit Agreement, payable
quarterly in arrears.
RATE AND FEE BASIS: All per annum rates shall be
calculated on the basis of a
year of 360 days (or 365/366
days, in the case of ABR
Loans the interest rate
payable on which is then
based on the Prime Rate) for
actual days elapsed.
IV. COLLATERAL; RESERVE CAPITAL CALL OBLIGATIONS; SUBSIDIARY GUARANTEES;
INSURANCE; PROJECT ACCOUNTS
COLLATERAL: Borrower's Assets: The
obligations of the Borrower
in respect of the Credit
Facility will be secured by a
first priority perfected
security interest in all of
the assets -- whether
tangible or intangible, or
personal or real property --
of the Borrower and each of
its subsidiaries, whenever
existing or arising and
wherever located, including,
without limitation, revenues,
intellectual property,
leases, fixtures, all of the
capital stock of each of the
subsidiaries of the Borrower,
rights under each of the
Project Documents to which
the Borrower is a party and
all other contract rights
(including any amounts
payable thereunder to the
Borrower, e.g. delay damages,
if any, payable by Motorola
under the Space System
Contract as currently in
effect), rights in respect of
the Reserve Capital Call
Obligations, Project accounts
(see description below) and
other permitted bank accounts
(and all monies and
investments therein),
Telecommunications Approvals
and other governmental and
third party consents and
approvals (in the case of
each Telecommunications
Approval, to the fullest
extent legally permissible),
and insurance policies and
proceeds payable thereunder,
and all other property, and
all proceeds of the
foregoing.
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Note: Except for the gateway
facilities and certain other
on-ground property to be
identified, other than
property expected to be owned
or leased by the Borrower or
any of its subsidiaries and
except for other property as
may be mutually agreed
between Iridium and the
Global Arrangers, all
property, including but not
limited to governmental
approvals and intellectual
property, necessary for the
Project will be owned by the
Borrower or a subsidiary of
the Borrower. If any such
property (as identified by
the Borrower) cannot be
transferred to the Borrower
for any reason, the Borrower
shall have made arrangements
satisfactory to the Lenders
to ensure mutually agreeable
access to, and full
beneficial use of, such
property, and entitling the
Lenders (or their
transferee), upon enforcement
of the Borrower's rights
therein, to continue such
access and use. Motorola and
the other relevant parties
shall use all reasonable
efforts to effect the
foregoing in a timely manner.
Without limiting the
foregoing, all
Telecommunications Approvals
held or obtained by the
Borrower or any of its
subsidiaries or held or
obtained by third parties
(other than certain
Telecommunications Approvals
expected to be obtained by
the gateway investors or
their designated service
providers) to the extent
necessary for the Project
shall, to the extent
permitted by law, be
transferred to and held in a
separate subsidiary of the
Borrower the capital stock of
which shall be pledged by the
Borrower to the
Administrative Agent for the
benefit of the Lenders as
security for the Borrower's
obligations in respect of the
Credit Facility. In the
event that any such
Telecommunications Approval
cannot be transferred into
the name of the Borrower or
such subsidiary on or prior
to the initial Loans (or such
later date as may be agreed)
or otherwise are held by
third parties, then at all
times prior to effecting such
transfer (i) arrangements
satisfactory to the Lenders
shall be in place ensuring
that the Borrower shall have
full beneficial use of such
Telecommunications Approval
(and entitling the Lenders
(or their transferee), upon
enforcement of the Borrower's
rights therein, to continue
such access and use) and (ii)
Motorola or such other third
party shall have pledged the
shares of its subsidiary
holding such
Telecommunications Approval
to the Administrative Agent
as security for certain
obligations of the
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Borrower in respect of the
Credit Facility, to the
fullest extent legally
permissible.
Borrower Capital Stock: All
of the equity interests of
the Borrower will be pledged
by the owner(s) thereof as
security for the obligations
of the Borrower in respect of
the Credit Facility and the
Reserve Capital Call
Obligations of such party (if
any).
The property subject to the
security interests and liens
in favor of the Lenders shall
be subject to no other liens
or encumbrances (other than
certain permitted liens to be
agreed).
RESERVE CAPITAL CALL OBLIGATIONS: The Iridium Members shall be
obligated to make certain
additional capital
contributions to the Borrower
on the terms set forth in the
LLC Agreement, up to an
aggregate net amount for the
Borrower of $243 million. As
contemplated under
"Collateral" above, the
Borrower will assign as
security to the Lenders all
of its rights with respect to
such obligations owing to the
Borrower, and the Iridium
Members will take all action
required under the LLC
Agreement to confirm such
assignment and agree that the
Lenders shall be entitled to
enforce such obligations and
have the right to call for
such additional capital
contributions to be made
directly to the
Administrative Agent on terms
to be agreed.
SUBSIDIARY GUARANTEE: All amounts under the Credit
Facility will be irrevocably
and unconditionally
guaranteed, jointly and
severally, by each of the
subsidiaries of the Borrower
(the "SUBSIDIARY GUARANTEE").
INSURANCE: The Administrative Agent
shall be named as loss payee
on insurance of Iridium
(other than insurance payable
to third parties), and the
Administrative Agent and the
Lenders shall be named as
additional insureds on all
liability insurance of the
Borrower and Motorola
relating to the Project.
PROJECT ACCOUNTS: One or more project accounts
will be maintained by the
Borrower and its subsidiaries
with the Administrative
Agent, through which all
Project-related funds and
revenues will flow. Funds in
the project accounts will be
applied to approved Project
costs (including but not
limited to payments under the
O&M Agreement) as
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they fall due according to an
order of priority to be
mutually agreed between the
Borrower and the Global
Arrangers.
STATUS OF MOTOROLA GUARANTEE: In the event that Motorola
shall acquire any claim,
right or remedy against the
Borrower, by subrogation or
otherwise, as a consequence
of Motorola's payment of any
amount under the Motorola
Guarantee to the lenders
under the Guaranteed Credit
Facility, Motorola shall
agree, for the benefit of the
Lenders, that payment of any
amount in respect of such
claim against the Borrower
shall be subordinated to the
prior payment in full in cash
of principal, interest and
other amounts owing under the
Credit Facility, nor shall
Motorola be entitled to
exercise any such right or
remedy until all such amounts
under the Credit Facility
have been paid in full and
the Commitments have expired
or terminated.
V. CERTAIN CONDITIONS PRECEDENT
CONDITIONS TO AVAILABILITY: The effectiveness of the
Credit Facility and the
availability of the initial
Loans thereunder will be
subject to certain conditions
precedent to be set forth in
the Credit Agreement,
including, but not limited
to, those set forth in Part I
of Annex 2 hereto.
ON-GOING CONDITIONS: The making of each Loan
shall also be conditioned
upon (a) the accuracy of all
representations and
warranties in the Credit
Documents, (b) there being no
default or event of default
in existence at the time of,
or after giving effect to the
making of, such Loan and (c)
satisfaction of the other
conditions precedent
summarized in Part II of
Annex 2 hereto.
SATISFACTION WITH CONDITIONS: Each of the conditions
precedent under the Credit
Facility shall be determined
to the satisfaction of the
Lenders and, to the extent
documentation or other
evidence shall be required to
be delivered to satisfy any
such condition, the same
shall be either in the form
attached as exhibits to the
Credit Documents or otherwise
in form and substance
satisfactory to the Lenders
and delivered to the
Administrative Agent.
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VI. CERTAIN DOCUMENTATION MATTERS
The Credit Documents shall
contain representations,
warranties, covenants, events
of default and other
provisions customary for a
financing with this structure
(including, where
appropriate, materiality
qualifications) and other
terms deemed appropriate by
the Lenders, including,
without limitation:
REPRESENTATIONS AND WARRANTIES: Representations and
warranties customary or
appropriate for a financing
with this structure and will
include, but not be limited
to, the following:
1. Accuracy of financial
statements; absence of
undisclosed liabilities; and
absence of material adverse
change (to be defined).
2. Legal existence.
3. Compliance with laws and
regulations.
4. Power and authority to
carry out its business and to
execute, deliver and perform
all Transaction Documents.
5. Enforceability of the
Transaction Documents.
6. No conflict with the
Borrowers' LLC Agreement (or
other relevant organization
documents), laws and
regulations or contractual
obligations.
7. Absence of material
litigation.
8. Absence of default.
9. Title to property;
leases; and liens.
10. ERISA.
11. Intellectual property.
12. Capitalization;
subsidiaries; investments.
13. Environmental and health
and safety matters.
14. Accuracy of written
disclosure (including, as to
any "forward-looking"
statements such as
projections, budgets and the
Iridium Business Plan, that
the same are made in good
faith and based upon
reasonable assumptions at the
time made).
15. Telecommunications
Approvals and other
governmental approvals.
16. Use of proceeds.
17. Payment of taxes.
18. Validity of Security
Documents, and creation of
first priority perfected
liens thereunder in favor of
the Lenders.
19. Sufficiency of Project
Documents.
20. Insurance.
21. Immunity.
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AFFIRMATIVE COVENANTS: Affirmative covenants
customary or appropriate for
a financing with this
structure and will include,
but not be limited to, the
following:
1. Delivery of financial and
other information, including
but not limited to:
(i) certified quarterly
financial statements
(ii) audited annual
financial statements
(iii) SEC filings
(iv) reports to
shareholders generally
(v) construction,
operating and capital
expenditures budgets, and
status reports on the Project
(vi) summary business plan
with measurable monthly
objectives
(vii) litigation and other
proceedings
(viii) notices of defaults;
and
(ix) other matters and
information (to be
specified).
2. Maintenance of legal
existence.
3. Compliance with
applicable laws and
regulations (including,
without limitation,
environmental and health and
safety laws, the Trading with
the Enemy Act, the
International Emergency
Economic Powers Act, the
Foreign Corrupt Practices
Act, etc., to the extent
applicable), Transaction
Documents and other material
contractual obligations.
4. Payment of taxes.
5. Maintenance of properties.
6. Maintenance of books and
records.
7. Inspection rights of
property of the Borrower and
its subsidiaries and, to the
extent permitted under the
terms of the Space System
Contract, the O&M Agreement
or any other agreement
between the Borrower and
Motorola, at the relevant
facilities of Motorola and
its prime subcontractors;
inspection of books and
records; and cooperation
and/or consultation with the
Lenders' consultants.
8. Maintenance of insurance
in accordance with the
insurance program of the
Borrower (see Annex 2,
Section I.1 of Part I).
9. Maintenance of and
compliance with all
Telecommunications Approvals
and other governmental
approvals.
10. Operation of the Project
in compliance with best
industry practice and all
applicable laws and
regulations.
11. Other undertakings
relating to the Project.
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FINANCIAL COVENANTS: Financial covenants will be as follows:
1. total debt to capitalization (to be
determined).
2. requirement to maintain at all
times committed or available funding
sources (as certified by a senior
financial officer of the Borrower)
through the then-scheduled Commitment
Termination Date to meet its projected
capital and operating expenses under
the Iridium Business Plan.
NEGATIVE COVENANTS: Negative covenants customary or
appropriate for a financing with this
structure and will include, but not be
limited to, the following (with certain
exceptions, where appropriate, to be
agreed):
1. Mergers, consolidations,
liquidations and dissolutions.
2. Sales of assets and other
dispositions.
3. Acquisitions.
4. Liens.
5. Indebtedness (including mandatorily
redeemable preferred stock or similar
instruments, guarantees and other
contingent obligations), with certain
exceptions to be agreed, including (i)
up to $1,875,000,000 in unsecured debt
(subject to review upon completion of
the initial high-yield debt offering),
and (ii) the 14-1/2% senior
subordinated notes due 2006 in an
original aggregate principal amount of
$238 million held by certain of the
Members.
6. Investments and subsidiaries.
7. Distributions and other restricted
payments.
8. Capital expenditures.
9. Modifications of the Borrower's
organizational documents, the Project
Documents and other material
agreements.
10. Scope of business and changes in
business.
11. Transactions with affiliates
(including Iridium Members).
12. Leases.
13. Restrictions on optional payments
and modifications of subordinated and
other debt instruments (including the
Guaranteed Credit Facility).
14. Use of proceeds.
15. Limitation on change in fiscal
year.
16. Utilization of the Reserve Capital
Call Obligations.
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EVENTS OF DEFAULT: Events of defaults customary or
appropriate for a financing with this
structure and will include, but not be
limited to, the following (subject, in
certain cases (to be determined), to
grace periods, materiality
qualifications and cure rights to be
agreed by the Lenders):
(1) Borrower Defaults.
1. Failure by the Borrower to pay
principal of or interest on any Loans
(including by mandatory prepayment) and
any other amount due under any Credit
Document.
2. Any representation or warranty of
the Borrower or any of its subsidiaries
under any Transaction Document shall
prove to be have been false or
misleading in any material respect when
made or deemed made.
3. Default by the Borrower or any of
its subsidiaries in the performance of
its obligations under any of the
Transaction Documents.
4. Cross-default to other indebtedness
of the Borrower and its subsidiaries.
5. Any bankruptcy or similar event
affecting the Borrower or any of its
subsidiaries.
6. A final judgment for the payment of
money in excess of a specified amount
(to be agreed) against the Borrower or
any of its subsidiaries and the same
shall remain unpaid and unstayed for a
specified period.
7. Any failure by the Borrower or any
of its subsidiaries or any other
relevant person to obtain, renew,
maintain or comply in all material
respects with any Telecommunications
Approval or other governmental approval
which is necessary for the conduct or
operation of the business of the
Borrower or the Project at such time;
or the revocation, cessation,
termination, withdrawal, suspension,
adverse modification or withholding of
any thereof; or the commencement of any
action for the purpose of revoking,
terminating, withdrawing, suspending,
adversely modifying or withholding any
material such Telecommunications
Approval or other governmental approval
and such proceeding is reasonably
likely to be successful and could
reasonably be expected to have a
material adverse effect.
8. Any Transaction Document to which
the Borrower or any of its subsidiaries
is a party shall terminate or cease to
be in full force and effect for any
reason, any
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lien created under the Security
Documents to which the Borrower or any
of its subsidiaries is a party shall
cease to be enforceable or the Borrower
or any such subsidiary shall assert the
invalidity or unenforceability of any
thereof or take any action to terminate
the same (or any similar action shall
be taken by any governmental entity).
(2) Motorola Defaults.
1. Failure by Motorola to pay any
amount due (after expiration of grace
periods and cure rights to be agreed)
under any Transaction Document to which
it is a party.
2. Any representation or warranty of
Motorola under any Transaction Document
shall prove to be have been false or
misleading in any material respect when
made or deemed made.
3. Default by Motorola in the
performance of its obligations under
any of the Transaction Documents after
expiration of grace periods and cure
rights to be agreed.
4. Cross-default to other indebtedness
of the Motorola and its domestic
subsidiaries in an amount equal to at
least 3% of Motorola's consolidated
total stockholders' equity.
5. Any bankruptcy or similar event
affecting Motorola or any of its
domestic subsidiaries.
6. A final judgment for the payment of
money (exclusive of insurance) against
Motorola or any of its domestic
subsidiaries in excess of 3% of
Motorola's consolidated total
stockholders' equity (exclusive of
insurance) and the same shall remain
unpaid and unstayed for a specified
period.
7. Any failure by Motorola to obtain,
renew, maintain or comply in all
material respects with any
Telecommunications Approval or other
governmental approval currently held
(or required to be obtained) by
Motorola which is necessary for the
conduct or operation of the business of
the Borrower or the Project at such
time; or the revocation, cessation,
termination, withdrawal, suspension,
adverse modification or withholding of
any thereof; or the commencement of any
action for the purpose of revoking,
terminating, withdrawing, suspending,
adversely modifying or withholding any
material such Telecommunications
Approval or other governmental approval
and such
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proceeding is reasonably likely to be
successful and could reasonably be
expected to have a material adverse
effect.
8. Any Transaction Document to which
Motorola is a party (including but not
limited to the Space System Contract
and the O&M Agreement) shall terminate
or cease to be in full force and effect
for any reason, any lien created under
the Security Documents to which
Motorola is a party shall cease to be
enforceable or Motorola shall assert
the invalidity or unenforceability of
any thereof or take any action to
terminate the same (or any similar
action shall be taken by any
governmental entity).
(3) Event of Defaults relating to
Other Project Parties.
1. Failure by any Project Party
(other than the Borrower, any of its
Subsidiaries or Motorola) (each an
"OTHER PROJECT PARTY') to pay any
amount due to the Borrower or the
Administrative Agent under any
Transaction Document to which it is a
party.
2. Any representation or warranty of
any Other Project Party under any
Transaction Document shall prove to
have been false or misleading in any
material respect when made or deemed
made.
3. Default by any Other Project Party
in the performance of any of its
obligations under any of the
Transaction Documents.
4. Any bankruptcy or similar event
affecting any Other Project Party.
5. Any failure by any Other Project
Party to obtain, renew, maintain or
comply in all material respects with
any Telecommunications Approval or
other governmental approval which is
necessary for the conduct or operation
of the business of the Borrower or the
Project at such time; or the
revocation, cessation, termination,
withdrawal, suspension, adverse
modification or withholding of any
material such Telecommunications
Approval or other governmental
approval; or the commencement of any
action for the purpose of revoking,
terminating, withdrawing, suspending,
adversely modifying or withholding any
thereof and such proceeding is
reasonably likely to be successful and
could reasonably be expected to have a
material adverse effect.
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6. Any material provision of any
Transaction Document to which any Other
Project Party is a party is terminated
or ceases to be in full force and
effect for any reason, any lien created
under the Security Documents to which
any Other Project Party is a party
shall cease to be enforceable or any
Other Project Party shall assert the
invalidity or unenforceability of any
thereof or take any action to terminate
or suspend the same (or any similar
action shall be taken by any
governmental entity).
Note: The terms of any Event of
Default relating to the persons (other
than the Borrower, any of its
subsidiaries and Motorola) will be
consistent with the principle that the
Credit Facility as a whole should not
depend on the credit standing,
performance or solvency of any such
person alone or on any event relating
to any such person unless the event
could reasonably be expected, in the
sole determination of the Lenders, to
have a material adverse effect on the
Borrower or the Project.
(4) Other Event of Default.
1. Abandonment of the Project;
condemnation or seizure of material
assets of the Borrower or the Project;
or suspension of the operation of the
Project for a period of time to be
determined.
2. Change of ownership and/or
control. (See "Project Ownership"
below)
3. Other events of default to be
determined.
REMEDIES: Upon the occurrence and during the
continuation of an Event of Default,
the Administrative Agent may (i)
terminate or suspend the Commitments,
(ii) demand immediate repayment of the
Loans and all other amounts owed to the
Lenders under the Credit Facility,
(iii) draw in respect of the Reserve
Capital Call Obligations and/or (iv)
exercise such other rights and remedies
as the Lenders may have at law or in
equity.
PROJECT OWNERSHIP: Motorola will hold, free and clear of
any lien or other restriction (except
for existing contractual arrangements
that have been disclosed in writing to
the Lenders), directly owned interests
in Iridium LLC of not less than
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15,750,000 shares. Note: Motorola
will not be required to purchase any
additional ownership interests of
Iridium LLC to offset the effects of
dilution.
In addition, Motorola will enter into,
in favor of the Lenders, a non-compete
covenant to be mutually agreed.
VOTING: Amendments and waivers with respect to
the Credit Documents shall require the
approval of the Required Lenders,
except that (a) the consent of each
Lender affected thereby shall be
required with respect to (i) extensions
of the Commitment Termination Date and
the Final Maturity (other than an
extension of the Commitment Termination
Date to February 28, 1999 as described
under "Availability" in Part II above),
(ii) reductions in the rate of interest
or any fee or extensions of any due
date thereof, (iii) increases in the
amount of any Lender's Commitment and
(iv) reductions in the amount of any
scheduled payment of principal, and (b)
the consent of 100% of the Lenders
shall be required with respect to (i)
modifications to any of the voting
percentages and (ii) releases (but not
modifications) of all or substantially
all of the collateral and/or the
Reserve Capital Call Obligations (other
than in accordance with the terms
thereof).
ASSIGNMENTS AND PARTICIPATIONS: The Lenders shall be permitted to
assign and sell participations in their
Loans and Commitments, subject, in the
case of assignments (other than to
another Lender or to an affiliate of
the assigning Lender), to the consent
of the Administrative Agent and the
Borrower (which consent, in each case,
shall not be unreasonably withheld).
In the case of partial assignments, the
minimum assignment amount shall be
$10,000,000 and, after giving effect
thereto, the assigning Lender shall
have Commitments and Loans aggregating
at least $10,000,000. Participants
shall have the same benefits as the
Lenders with respect to yield
protection and increased cost
provisions. Voting rights of
participants shall be limited to those
matters with respect to which the
affirmative vote of the Lender from
which it purchased its participation
would be required as described under
"Voting" above. A
recordation/processing fee of $3,500
will be paid to the Administrative
Agent by the assignor in connection
with each assignment.
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YIELD PROTECTION: The Credit Agreement shall contain
customary provisions (a) protecting the
Lenders against loss of yield resulting
from changes in reserve, tax, capital
adequacy and other requirements of law
and from the imposition of withholding
or other taxes and (b) indemnifying the
Lenders for "breakage costs" incurred
in connection with, among other things,
prepayment of a Eurodollar Loan on a
day other than the last day of an
interest period with respect thereto.
EXPENSES AND INDEMNIFICATION: The Borrower shall pay (a) all
reasonable out-of-pocket expenses of
the Global Financing Advisor, the
co-Financing Advisor, the Global
Arrangers, the other Lead Arrangers and
the Agents associated with the
syndication of the Credit Facility and
the preparation, execution, delivery
and administration of the Credit
Documents and the Project Documents and
any amendment or waiver with respect
thereto (including the reasonable fees
and disbursements and other charges of
legal counsel to the Lead Arrangers
identified or contemplated below and
the fees and expenses of the Lenders'
other consultants, including the
Lenders' Insurance Advisor, Market
Consultant and Technical Advisor and
other consultants agreed to by the
Borrower (such agreement not to be
unreasonably withheld)) and (b) all
out-of-pocket expenses of the Lenders
and the Agents in connection with the
enforcement of the Credit Documents
(including the fees and disbursements
and other charges of legal counsel).
The Borrower shall indemnify, pay and
hold harmless the Global Financing
Advisor, the co-Financing Advisor, the
Global Arrangers, the other Lead
Arrangers, the Lenders and the Agents
(and their respective directors,
officers, employees and agents) against
any loss, liability, cost or expense
incurred in respect of the financing
contemplated hereby or the use or the
proposed use of proceeds thereof
(except to the extent resulting from
the gross negligence or willful
misconduct of the indemnified party).
GOVERNING LAW: State of New York.
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SUBMISSION TO JURISDICTION,
ETC.: All persons and entities obligated to
the Lenders in respect of the Credit
Documents will submit to the
non-exclusive jurisdiction of New York
courts. All of the parties to the
Credit Documents will, to the fullest
extent permitted by applicable law,
waive any right to a trial by jury.
WAIVER OF IMMUNITY: To the extent the Borrower or any other
Project Party party to a Credit
Document might now or later acquire
immunity from jurisdiction of any court
or from any legal process with respect
to itself or its property, each such
person irrevocably will waive immunity
with respect to its obligations under
the Credit Documents.
COUNSEL TO THE GLOBAL
ARRANGERS AND OTHER
LEAD ARRANGERS: Milbank, Tweed, Hadley & McCloy, which
will act as the sole counsel for the
Global Arrangers and the other Lead
Arrangers (other than local or special
counsel deemed necessary by the Global
Arrangers and agreed to by the Borrower
(such agreement not to be unreasonably
withheld)).
21
ANNEX 1
DEFINITIONS
ADMINISTRATIVE AGENT: The Chase Manhattan Bank.
AGENTS: The Administrative Agent and the
Documentation Agent.
BARCLAYS: Barclays Bank PLC.
BORROWER: Iridium LLC.
BZW: BZW, a division of Barclays Bank PLC.
CHASE: The Chase Manhattan Bank.
COMMITMENT TERMINATION DATE: As defined in Part II above.
COMMITMENTS: The commitments of the Lenders to make
the Loans.
CONSTRUCTION BUDGET: As defined in Annex 2, Part I.D.4.
CREDIT AGREEMENT: As defined in Part V above.
CREDIT DOCUMENTS: Collectively, the Credit Agreement, the
Notes, the Security Documents and the
Subsidiary Guarantee.
CREDIT FACILITY: As defined in Part II above.
DOCUMENTATION AGENT: BZW.
FCC: U.S. Federal Communications Commission.
GATEWAYS: Terrestrial interconnection points
between the IRIDIUM satellite
constellation and public switched
telephone networks (PSTNs).
GLOBAL ARRANGERS: Chase Securities and BZW.
GUARANTEED CREDIT FACILITY: The Credit Agreement dated as of August
21, 1996, as amended, between Iridium
LLC, the lenders party thereto and the
Administrative Agent, providing for
loans of up to $750,000,000, guaranteed
by Motorola pursuant to a Guarantee
Agreement dated as of August 21, 1996,
as amended.
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IBSS: IRIDIUM Business Support Systems.
ICRS: IRIDIUM Cellular Roaming Service.
IRIDIUM BUSINESS PLAN: The "Iridium Business Financial Plan",
Version 2.0, dated March 31, 1997.
IRIDIUM MEMBERS: The holders of all equity interests of
the Borrower, which as of the date
hereof are:
Iridium Africa Corporation
Iridium Andes Caribe
Iridium Brasil Ltda.
Iridium China (Hong Kong) Ltd.
Iridium Canada, Inc.
Iridium Italia S.p.A
Iridium India Telecom Limited
Iridium Middle East Corporation
Khrunichev State Research and
Production Space Center
Korea Mobile Telecommunications
Corporation
Lockheed Martin Corporation
Motorola
Nippon Iridium (Bermuda) Limited
Pacific Electric Wire & Cable Co., Ltd.
P.T. Bakrie Communications Corporation
Raytheon Company
Sprint Iridium, Inc.
Thai Satellite Telecommunications Co.,
Ltd.
VEBACOM Holdings, Inc.
IRIDIUM SYSTEM: The IRIDIUM Communications Systems.
LEAD ARRANGERS: A group of leading financial
institutions, including the Global
Arrangers, selected by the Borrower and
the Global Arrangers.
LENDERS: The banks, financial institutions and
other entities, including the Chase,
Barclays and the other Lead Arrangers,
selected in the syndication effort of
the Credit Facility.
LENDERS' INSURANCE ADVISOR: Sedgwick James of New Jersey, Inc.
LENDERS' MARKET CONSULTANT: Coopers & Lybrand, L.L.P.
LENDERS' TECHNICAL ADVISOR: Arthur D. Little, Inc.
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LOANS: The loans under the Credit Facility up to $750,000,000 in
aggregate principal amount.
MOTOROLA: Motorola, Inc., a Delaware corporation.
NOTES: As defined in Part I.A of
Annex 2 hereto.
O&M AGREEMENT: The Operations and Maintenance
Contract, effective July 29, 1993,
between Iridium, Inc. and Motorola, as
amended.
PROJECT: The IRIDIUM System, including without
limitation the IBSS and the Gateways.
PROJECT DOCUMENTS: The following contracts (as amended or
replaced) to which the Borrower is or
will be a party in connection with the
development, construction,
installation, ownership, operation and
maintenance of the Project:
1. the Space System Contract;
2. the Operations and Maintenance
Contract;
3. the Terrestrial Network
Development Contract;
4. all Gateway Authorization
Agreements;
5. all agreements regarding the
delivery and pricing of
subscriber units;
6. the Limited Liability Company
Agreement of Iridium LLC; and
7. other material agreements to
be mutually agreed between
the Borrower and the Global
Arrangers.
PROJECT PARTIES: The Borrower, the subsidiaries of the
Borrower, the Iridium Members and each
other Person party to any of the
Transaction Documents.
REQUIRED LENDERS: Lenders holding at least a simple
majority of the aggregate unused
Commitments and outstanding Loans of
all the Lenders.
RESERVE CAPITAL CALL OBLIGATIONS: The obligations of the Iridium Members
in respect of the "Reserve Capital Call
Obligations" described in Part IV
above.
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SECURITY DOCUMENTS: As defined in Annex 2, Part I.B.
SPACE SYSTEM CONTRACT: The Space System Contract, effective as
of July 29, 1993, between Iridium, Inc.
and Motorola, as amended.
SUBSIDIARY GUARANTEE: As defined in Part IV above.
TELECOMMUNICATIONS APPROVALS: All governmental authorizations,
approvals, orders, clearances, permits,
licenses, etc. of any applicable
telecommunications authority (including
all local and national
telecommunications approvals and
licenses, including FCC licenses, and
compliance with ITU procedures and
requirements) relating to the Project
including without limitation for
spectrum allocation, Ka-band, L-band,
interconnection, type approval,
trans-border roaming and other business
operations.
TERRESTRIAL NETWORK
DEVELOPMENT CONTRACT: The Terrestrial Network Development
Contract, entered into in June 1995,
between Iridium, Inc. and Motorola, as
amended.
TRANSACTION DOCUMENTS: Each of the Credit Documents and the
Project Documents.
25
ANNEX 2
CONDITIONS PRECEDENT
Set forth below is a list of the indicative principal
conditions precedent to Loan disbursements under the Credit Facility.
I. CONDITIONS PRECEDENT TO THE INITIAL LOANS
A. EXECUTION AND DELIVERY OF PRINCIPAL CREDIT DOCUMENTS
1. Credit Agreement. A Credit Agreement, duly executed and
delivered by the Borrower, the Lenders and the Administrative
Agent, providing for the Credit Facility (the "CREDIT
AGREEMENT") .
2. Notes. The promissory note(s) payable to each Lender
evidencing the Loans (the "NOTES"), if requested by any
Lender.
3. Subsidiary Guarantee. The Subsidiary Guarantee to be entered
into between each of the subsidiaries of the Borrower and the
Administrative Agent in respect of the Credit Facility.
B. EXECUTION AND DELIVERY OF SECURITY DOCUMENTS; OTHER REQUIREMENTS
RELATING TO THE COLLATERAL
1. Borrower Security Agreements. The Borrower and each of its
subsidiaries shall have entered into one or more security
agreements, pledge agreements, mortgages, deeds of trust,
leasehold mortgages or similar instruments or agreements
(collectively, the "BORROWER SECURITY AGREEMENTS"), in each
case with the Administrative Agent (or a collateral agent or
trustee designated by the Global Arrangers for that purpose),
pursuant to which the Borrower and each such Subsidiary grant
the security interests in its assets contemplated hereby, and
shall have taken such other action (including, without
limitation, the filing or recording of any instruments and the
payment of fees, assessments, taxes and/or other charges) as
the Administrative Agent shall have requested, in order to
provide the Lenders with a first priority perfected security
interest in or lien upon such assets, as contemplated hereby.
2. Pledge Agreements. The holder(s) of the equity interests of
the Borrower shall have entered into one or more pledge
agreements pursuant to which, collectively, such holder(s)
shall pledge all of the equity interests of the Borrower to
the Administrative Agent for the benefit of the Lenders
(collectively, the "PLEDGE AGREEMENTS"), as contemplated
hereby.
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3. Other Security Agreements. Each other Person required under
"Collateral" in Part IV above to provide a security interest
in assets of such person shall have entered into a security
agreement or similar instrument (collectively, the "OTHER
SECURITY AGREEMENTS") with the Administrative Agent creating
such security interests, and shall have taken such other
action (including, without limitation, the filing or recording
of any instruments and the payment of fees, assessments, taxes
and/or other charges) as the Administrative Agent shall have
requested, in order to provide the Lenders with a first
priority perfected security interest in or lien upon such
assets, as contemplated hereby.
4. Consent and Agreement. A consent and agreement to be entered
into between the Administrative Agent and each Project Party
party to a Project Document other than the Borrower (such as
the gateway operators) and each Iridium Member obligated under
the Reserve Capital Call Obligations (each a "CONSENT AND
AGREEMENT" and, together with the Borrower Security
Agreements, the Pledge Agreements and the Other Security
Agreements, the "SECURITY DOCUMENTS"), providing for certain
direct agreements between such party and the Lenders with
respect to various issues that are customarily addressed in
these types of agreements for a financing with this structure,
including, but not limited to: consent to the Borrower's
assignment of its rights under the respective agreements as
collateral security for the benefit of the Lenders; agreement
to the Lenders' right to enforce the Borrower's rights under
the relevant agreement; agreement to make payments of amount
payable by such Project Party to Iridium directly to one of
the project accounts maintained with the Administrative Agent,
etc. (The undertakings contemplated above may be incorporated
into a Credit Document (if any) to which the relevant Project
Party is a party or, in the case of the Iridium Members, an
amendment to the LLC Agreement, a joint resolution or other
joint undertaking.)
5. Filings, Registrations and Recordings. Evidence that all
filings, recordings, registrations, etc. with respect to the
Security Documents and payments 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 Credit Documents shall have been made.
6. Title Insurance, Etc. In conjunction with any mortgage, deed
of trust, leasehold mortgage or similar instrument regarding
real estate, the Borrower will provide mortgagee title
insurance policies, surveys, appraisals and other
documentation reasonably requested by the Administrative Agent
in connection with the granting of a first mortgage lien in
favor of the Lenders on the subject premises.
7. Stock Certificates. If the equity interests of the Borrower
or any of its subsidiaries are evidenced by a certificate, the
Administrative Agent shall have received such certificate(s)
together with undated stock powers executed in blank, and/or
the pledgor thereof shall have taken such other action
reasonably requested by the Administrative Agent in order to
create a first priority perfected security interest in such
equity interests.
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8. Transfer of Property. Except as mutually agreed between
Iridium and the Global Arrangers or otherwise as contemplated
herein and only to the extent required under "Collateral" in
Part IV above, all property (including without limitation all
Telecommunications Approvals and intellectual property)
necessary for the Project shall have been transferred to the
Borrower or a subsidiary of the Borrower, or arrangements with
respect to such transfer as may be satisfactory to the
Required Lenders and the Administrative Agent.
9. Further Action. All other action or steps shall have been
taken by each party to the Security Documents reasonably
requested by the Administrative Agent in order to create a
first priority perfected security interest in the respective
property subject to the Security Documents.
C. PROJECT DOCUMENTS
1. Project Documents in Force. Each of the Project Documents
(other than any Project Document expressly contemplated to be
executed after the relevant borrowing), in each case
containing such terms and conditions as shall be consistent
with this Summary of Terms and Conditions and which shall be
in full force and effect.
2. Copies of Project Documents. The Administrative Agent shall
have received a true, complete and correct copy of each of the
Project Documents as then in effect.
D. FINANCIAL AND OTHER INFORMATION
1. Iridium's Financial Statements. Copies of the most recent
audited consolidated financial statements of the Borrower and
unaudited quarterly consolidated financial statements of the
Borrower for each quarterly period ended subsequent to the
date of such audited financial statements.
2. Certain Project Parties' Financial Statements. Upon request
of the Administrative Agent, for each party obligated in
respect of the Reserve Capital Call Obligations, copies of
audited (if available, otherwise unaudited and certified by a
senior financial officer of such party) financial statements
of such party 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.
3. Iridium Business Plan. The Iridium Business Plan as then in
effect, certified as such by a senior officer of the Borrower,
in all respects satisfactory to the Lenders, and which include
projections of revenues, operating expenses and capital
expenditures for the Project (including, without limitation,
the Gateways), together with written assumptions therefor,
covering the period of at least 1997-2004, and delivery of a
summary business plan with measurable monthly objectives.
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4. Construction Budget. The Project construction budget (the
"Construction Budget"), certified as such by a senior officer
of the Borrower, in all respects satisfactory to the Lenders.
5. Other Information. Such other financial or other information
as the Administrative Agent or any Lender may reasonably
request.
E. FUNDING OF CAPITAL REQUIREMENTS FOR THE PROJECT
1. Other Funding. Evidence that, prior to the initial Loans, (i)
the Borrower (x) shall have received aggregate net cash
proceeds from the issuance of equity of at least
$2,018,000,000, which may include $50,000,000 of receivables
from Bakrie (or $1,985,000,000 if over-allotment option is not
exercised by underwriters of the initial public offering), (y)
shall continue to have outstanding the 14-1/2% senior
subordinated notes due 2006 (or such notes shall have been
converted pursuant to their terms) and (z) shall have issued
or have outstanding $1,875,000,000 aggregate amount of
unsecured debt, of which not more than $350,000,000 may
represent conditional commitments of Motorola to either
provide such financing or guarantees with respect thereto (the
terms of which shall be satisfactory to the Lenders) and (ii)
such proceeds have been (or in the case of such commitments,
will be) applied by the Borrower to the payment of budgeted
Project costs (based upon the approved Construction Budget).
2. Reserve Capital Call Obligations. The provisions of the LLC
Agreement in respect of the Reserve Capital Call Obligations
shall be in full force and effect, and each of the Iridium
Members shall have entered into the agreements in favor of the
Lenders as contemplated in "Reserve Capital Call Obligations"
in Part IV above.
F. TECHNICAL REQUIREMENTS
1. Appendix A Requirements. Evidence satisfactory to the Global
Arrangers and the Lenders' Technical Advisor as to achievement
of or satisfaction with each of the technical and other
requirements specified in Appendix A hereto that are required
to be met on or prior to the making of the initial Loans.
2. Report of Lenders' Technical Advisor. A written report of the
Lenders' Technical Advisor (expected to be completed June 30,
1997), in form and substance satisfactory to the Global
Arrangers and the Lenders, as to (i) confirmation as to
adherence to the schedule for completion, (ii) functionality
of the components of project employed to date and (iii)
achievability of such completion schedule.
3. ISU's. Execution of satisfactory contracts between the
Borrower and/or other parties acceptable to the Lenders, on
the one hand, and Motorola and other parties acceptable to the
Lenders, on the other hand, which provide reasonable
assurances of the supply of subscriber units in sufficient
quantities to cover at least the projected level of
29
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subscribers for the first year of commercial operation and at
a price consistent with achievement of the Iridium Business
Plan.
G. REGULATORY REQUIREMENTS
1. Disclosure of Project Approvals. The Borrower shall provide a
list in satisfactory detail of all material Telecommunications
Approvals and other governmental and third party approvals and
consents (collectively, the "PROJECT APPROVALS") required for
(1) the execution, delivery and performance of the Transaction
Documents and (2) all aspects of the Project (including
construction, launch, testing and operations) and covering,
inter alia, the Gateways, IBSS and ICRS. (This will be a
schedule to the Credit Agreement.)
2. Receipt of Project Approvals. Evidence that all Project
Approvals, which are necessary, in the opinion of the Global
Arrangers or their advisors, based on the then current stage
of development of the Project, shall have been duly obtained,
validly issued and in full force and effect, and certified
copies of each such Project Approval. With respect to any
Project Approval which is necessary for the operation of the
Project but which is not required to have been obtained as of
the relevant borrowing date or any Project Approval
theretofore granted but which is not final, the Borrower shall
represent that it has no reason to believe that the same will
not be granted to it (or the applicable person required to
obtain the same) in the ordinary course prior to the time when
it will be required or will not become final in the normal
course without unreasonable delay and without imposition of
material conditions or restrictions.
Note: Further investigation will be needed regarding any such
licenses or other consents in connection with subscriber
equipment and the operation of Gateways in local
jurisdictions, and the delays which may occur in the ordinary
course in obtaining such licenses and other consents.
3. Achievement of Minimum Regulatory Approvals. Achievement of
the minimum regulatory approvals (i.e., regulatory approvals,
execution of roaming agreements and execution of satisfactory
service provider agreements (including pricing and terms) with
"qualified" service providers (defined as PTTs and national
cellular operators)) as specified in Appendix A hereto that
are required to be obtained or in place on or prior to the
making of the initial Loans.
H. MARKETING REQUIREMENTS
1. Market Analysis. An analysis from the Lenders' Market
Consultant (expected to be completed June 30, 1997) as to (i)
the commercial market of the Project, (ii) a review of the
Iridium Business Plan and the reasonableness of the
assumptions relating thereto
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and (iii) a review of the Iridium distribution strategy and
regulatory requirements, in form and substance satisfactory to
the Global Arrangers.
I. INSURANCE
1. Insurance Program. A description of the insurance program of
the Borrower with respect to the Project, in form and
substance satisfactory to the Global Arrangers and the
Lenders' Insurance Advisor, which program will provide
sufficient coverage for (i) all potential material losses of
the Iridium satellites in orbit for which the Borrower would
be obligated to pay under the Space System Contract and the
O&M Agreement (and, with respect to the coverage amount, in an
amount not less than the maximum amount of the Credit
Facility), (ii) the Iridium System Control Segment and (iii)
general liability in an amount of $500,000,000.
2. Evidence of Insurance.
(i) Certificates of a senior financial officer of the Borrower
and an internationally recognized insurance broker certifying
that the insurance obtained by the Borrower is in accordance
with the insurance requirements of the Credit Agreement.
(ii) Certificates of the insurers (or its authorized
representative) and a senior financial officer of the Borrower
stating that the insurance obtained by the Borrower is in full
force and effect and that all insurance premiums and deposits
then due and payable thereon have been paid or made, and
attaching true and complete copy of the insurance policies
required to be in effect or certificates of insurance with
respect thereto, such policies or certificates to be in form
and substance satisfactory to the Lenders and the Lenders'
Insurance Advisor.
3. Loss Payee/Additional Insureds Designation. Evidence that the
Administrative Agent have been named additional insured(s)
and/or loss payee(s) under certain of the Borrower's and
Motorola's insurance as required above.
4. Report of Lenders' Insurance Advisor. A written report of the
Lenders' Insurance Advisor, as to the insurance program
referred to above, in form and substance satisfactory to the
Administrative Agent and the Lenders, and stating that, in
their opinion, such insurance adequately protects the
interests of the Administrative Agent and the Lenders and is
in compliance with the insurance requirements of the Credit
Agreement.
J. MISCELLANEOUS
1. Borrower's Resolutions, Incumbency, Etc.
A certificate of a senior officer of the Borrower as to:
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(i) board resolutions of the Borrower and its subsidiaries
authorizing the execution, delivery and performance of each of
the Transaction Documents to which the Borrower and its
subsidiaries are party and all other aspects of the
transactions contemplated thereby.
(ii) the name, incumbency and signature of each individual
authorized to execute the Transaction Documents to which the
Borrower and its subsidiaries are party and the other
documents or certificates to be delivered pursuant thereto (on
which the Administrative Agent and the Lenders may
conclusively rely until a revised certificate is similarly so
delivered).
(iii) certified copies of the organizational documents for
the Borrower and each of its subsidiaries.
2. Other Project Parties' Resolutions, Incumbency, Etc.
A certificate of a senior officer of each Project Party (other
than the Borrower and its subsidiaries) party to a Transaction
Document as to:
(i) board resolutions or other evidence of authorization of
such other Project Party authorizing the execution, delivery
and performance of each such Transaction Document and all
other aspects of the transactions contemplated thereby in
which such other Project Party is involved.
(ii) the name, incumbency and signature of each individual
authorized to execute the Transaction Documents to which such
other Project Party is a party and the other documents or
certificates to be delivered pursuant thereto (on which the
Administrative Agent and the Lenders may conclusively rely
until a revised certificate is similarly so delivered).
(iii) certified copies of the organizational documents for
each such other Project Party.
3. Borrower's Officer's Certificate. A certificate of a senior
officer of the Borrower certifying as to (i) the accuracy of
the representations and warranties made by the Borrower and
its subsidiaries in the Transaction Documents, and by each
other Project Party in the Credit Documents to which it is a
party and (ii) the absence of any default or event of default
under the Credit Agreement and the other Transaction Documents
on such date.
4. Project Party's Officer's Certificate. A certificate of a
senior officer of each Project Party (other than the Borrower)
party to a Transaction Document certifying as to (i) the
accuracy of the representations and warranties made by such
party in each such Transaction Document and (ii) the absence
of any default or event of default relating to such Project
Party under each Credit Document.
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5. Opinions of Counsel. Legal opinions in form and substance
acceptable to the Administrative Agent and the Lenders from
counsel to each of the Borrower and each other Project Party
as the Administrative Agent or any Lender may reasonably
request and such special and local counsel as may be required
by the Administrative Agent and as are customary for similar
transactions.
6. Process Agent. Letter from one or more persons satisfactory
to the Administrative Agent accepting its appointment as
process agent in New York for each Project Party party to a
Credit Document.
7. Payment of Fees and Expenses. Receipt by the Global
Arrangers, the Lead Arrangers and the Lenders of all fees and
expenses with respect to the Credit Facility (including,
without limitation, fees and expenses of counsel and other
consultants and experts engaged by the Global Arrangers) to
the extent then due and payable.
8. Compliance with Laws. The Lenders' satisfaction that the
Borrower and its subsidiaries are in material compliance with
all applicable U.S. federal, state, local and foreign laws and
regulations (including, without limitation, all applicable
environmental laws and regulations), including that the
extensions of credit under the Credit Facility shall be in
full compliance with all legal requirements.
9. Other Documents. Receipt of such other documents,
certificates, instruments and information as the
Administrative Agent or any Lender or special counsel to the
Global Arrangers may reasonably request.
II. CONDITIONS PRECEDENT TO EACH LOAN
1. Notice of Borrowing. Receipt by the Administrative Agent of a
Notice of Borrowing for the relevant Loan.
2. Progress and Utilization Certificate. Receipt by the
Administrative Agent of a certificate or certificates (in a
form or forms to be agreed) from the Borrower certifying as
to:
(i) the progress as to the construction of the Project
(consistent with the Iridium Business Plan) and that the
Project is expected to be completed in accordance with the
agreed schedule, and demonstrating that the Borrower has, as
of each borrowing date, sufficient available or committed
funding to achieve completion of the Project in accordance
with such schedule and to provide funding of Project costs to
the then-scheduled Commitment Termination Date;
(ii) achievement of the technical and other
requirements specified in Appendix A hereto that are required
to be met on or prior to the making of such Loan; and
(iii) the use of the proceeds of the relevant borrowing,
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accompanied by a certificate or certificates (in a form or
forms to be agreed) of the Lenders' Technical Advisor
verifying and/or concurring in certain of the foregoing (to be
mutually agreed between the Borrower and the Global
Arrangers).
3. Minimum Government Approvals. Achievement of the minimum
regulatory approvals as specified in Appendix A hereto that
are required to be obtained on or prior to the making of such
Loan.