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EXHIBIT 4.1
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IRIDIUM LLC
IRIDIUM CAPITAL CORPORATION
13% Senior Notes due 2005, Series A
Guaranteed by Iridium Roaming LLC
and Iridium IP LLC
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SERIES A NOTE INDENTURE
Dated as of July 16, 1997
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State Street Bank and
Trust Company,
Trustee
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TABLE OF CONTENTS
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RECITALS OF THE ISSUERS
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.02. Other Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 1.03. Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 1.04. Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE II
The Series A Notes
SECTION 2.01. Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.02. Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.03. Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.04. Paying Agent To Hold Money in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.05. Holder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.06. Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.07. Replacement Series A Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 2.08. Outstanding Series A Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 2.09. Temporary Series A Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.10. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.11. Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.12. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 2.13. Book-Entry Provisions for Global Series A Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 2.14. Special Transfer Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 3.02. Selection of Securities to be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 3.03. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 3.04. Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 3.05. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 3.06. Series A Notes Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 3.07. Optional Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
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ARTICLE IV
Covenants
SECTION 4.01. Payment of Series A Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 4.02. SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 4.03. Limitation on Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 4.04. Limitation on Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 4.05. Limitation on Restrictions on Distributions
from Restricted Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 4.07. Limitation on Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 4.08. Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 4.09. Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 4.10. [Reserved] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 4.11. Limitation on the Sale or Issuance of Capital
Stock of Restricted Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 4.12. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 4.13. Limitation on Lines of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 4.14. Limitation on Business Activities of Capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 4.15. Future Guarantor Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 4.16. Maintenance of Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE V
Successor Companies
SECTION 5.01. When Issuers May Merge or Transfer Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 6.02. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 6.03. Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 6.04. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 6.05. Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 6.06. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 6.07. Rights of Holders to Receive Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 6.08. Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
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SECTION 6.09. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 6.10. Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 6.11. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 6.12. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 6.13. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 7.02. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 7.03. Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 7.04. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 7.05. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 7.06. Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 7.07. Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 7.08. Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 7.09. Successor Trustee by Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 7.10. Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 7.11. Preferential Collection of Claims Against Issuers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Series A Notes; Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 8.02. Conditions to Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 8.03. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 8.04. Repayment to Note Issuers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 8.05. Indemnity for Government Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 8.06. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 9.02. With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 9.03. Compliance with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 9.04. Revocation and Effect of Consents and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 9.05. Notation on or Exchange of Series A Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
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SECTION 9.06. Trustee To Sign Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
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ARTICLE X
Subsidiary Guarantees
SECTION 10.01. Subsidiary Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 10.02. Limitation on Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 10.03. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 10.04. No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 10.05. Modification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 10.06. Initial Guarantors; Execution of
Supplemental Indenture for Future
Guarantor Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
ARTICLE XI
Miscellaneous
SECTION 11.01. Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 11.02. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 11.03. Communication by Holders with Other Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 11.04. Certificate and Opinion as to Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 11.05. Statements Required in Certificate or Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 11.06. When Series A Notes Disregarded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 11.07. Rules by Trustee Paying Agent and Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 11.08. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 11.09. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 11.10. No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 11.11. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 11.12. Multiple Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 11.13. Table of Contents; Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Exhibit A - Form of Face of Initial Series A Note
Exhibit B - Form of Face of Exchange Series A Note
Exhibit C - Form of Certificate to be Delivered upon Termination of
Regulation S Restricted Period
Exhibit D - Form of Certificate to be Delivered in Connection with Transfers
to Non-QIB Institutional Accredited Investors
Exhibit E - Form of Certificate for Transfer to Rule 144A Global Series A
Notes
Exhibit F - Form of Certificate to be Delivered in Connection with Transfers
Pursuant to Regulation S
Exhibit G - Form of Supplemental Indenture
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Schedule I - Other Existing Affiliate Agreements
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.02; 4.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.09
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05; 11.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316 (a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.06
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.01
9
N.A. means Not Applicable.
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
10
INDENTURE dated as of July 16, 1997, among IRIDIUM LLC, a
Delaware limited liability company ("Iridium"), IRIDIUM CAPITAL CORPORATION, a
Delaware corporation ("Capital" and, together with Iridium, the "Note
Issuers"), as joint and several obligors, IRIDIUM ROAMING LLC and IRIDIUM IP
LLC, as guarantors hereunder (the "Initial Guarantors", and together with the
Note Issuers, the "Issuers") and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts bank and trust company (the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Note
Issuers' 13% Senior Notes due 2005, Series A (the "Initial Series A Notes")
and, when and if issued pursuant to a registered exchange for Initial Series A
Notes, the Note Issuers' 13% Senior Notes due 2005, Series A (the "Exchange
Series A Notes") and, if and when issued pursuant to a Private Exchange for
Initial Series A Notes, the Note Issuers' 13% Senior Notes due 2005, Series A
(the "Private Exchange Series A Notes", and, together with the Exchange Series
A Notes and the Initial Series A Notes, the "Series A Notes").
RECITALS OF THE ISSUERS
The Issuers have duly authorized the execution and delivery of
this Indenture to provide for the issuance of up to $300,000,000 aggregate
principal amount of the Initial Series A Notes issuable as provided in this
Indenture. Pursuant to the terms of a Purchase Agreement dated July 11, 1997
(the "Purchase Agreement") among the Issuers, Iridium World Communications Ltd.
("IWCL"), Chase Securities Inc. and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, the Note Issuers have agreed to issue and sell 300,000 units (the
"Units"), each Unit consisting of $1000 principal amount of the Initial Series
A Notes and one warrant (the "Warrants"), which represents the right to
purchase 5.2 shares (the "Warrant Shares") of Class A Common Stock, par value
$0.01 per share (the "Class A Common Stock") of IWCL, issuable pursuant to the
terms of a Warrant Agreement dated as of July 16, 1997 (the "Warrant
Agreement") between IWCL and State Street Bank and Trust Company, as the
warrant agent (the "Warrant Agent"), and $500,000,000 aggregate principal
amount of 14% Senior Notes due 2005, Series B (the "Initial Series B Notes").
All things necessary to make this Indenture a valid agreement of the Issuers,
in accordance with its terms, have been done, and the Issuers have done all
things necessary to make the Series A Notes, when executed by the Issuers and
authenticated and delivered by the Trustee hereunder and duly issued by the
Issuers, the valid obligations of the Issuers as hereinafter provided.
For and in consideration of the premises and the purchase of
the Series A Notes by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders, as follows:
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Acquired Indebtedness" means, with respect to any specified
Person, (i) Indebtedness of any other Person existing at the time such Person
merges with or into or
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consolidates with or becomes a Restricted Subsidiary of such specified Person
and (ii) Indebtedness secured by a Lien encumbering any asset acquired by such
specified Person, which Indebtedness or Lien was not Incurred in anticipation
of, and was outstanding prior to, such merger, consolidation or acquisition.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of Voting Stock, by contract or otherwise;
provided, however, that beneficial ownership of 10% or more of the Voting Stock
of a Person shall be deemed to be control. The terms "controlling" and
"controlled" have meanings correlative to the foregoing. Notwithstanding the
foregoing, (a) no individual shall be an Affiliate of Iridium solely by reason
of his or her being a director, officer or employee of IWCL, Iridium or any
Subsidiary of either and (b) none of the Restricted Subsidiaries shall be
Affiliates of Iridium.
"Agreement Regarding Guarantee" means the Agreement Regarding
Guarantee between Iridium and Motorola, dated as of August 21, 1996, as amended
and restated as of July 11, 1997, and as further amended from time to time.
"Asset Disposition" means any transfer, conveyance, sale,
lease or other disposition (collectively, any "disposition") by Iridium or any
Restricted Subsidiary (including any disposition by means of a consolidation,
merger or similar transaction) but excluding a disposition by a Restricted
Subsidiary to Iridium or a Wholly-Owned Restricted Subsidiary or by Iridium to
a Wholly-Owned Restricted Subsidiary of (i) shares of Capital Stock of a
Restricted Subsidiary, (ii) all or substantially all of the assets of Iridium
or any Restricted Subsidiary representing a division or line of business or
(iii) other assets or rights of Iridium or any of its Restricted Subsidiaries
other than a disposition (a) in the ordinary course of business, (b) that
constitutes a Restricted Payment which is permitted under Section 4.04, (c)
that is subject to Article V herein, or (d) that constitutes the grant,
establishment or exercise of any Lien permitted pursuant to Section 4.12;
provided, however, that a transaction described in clauses (i), (ii) and (iii)
shall constitute an Asset Disposition only to the extent that the aggregate
consideration for all such transfers, conveyances, sales, leases or other
dispositions exceeds $10,000,000 in any 12-month period.
"Attributable Indebtedness" in respect of a Sale and Leaseback
Transaction means, as at the time of determination, the present value
(discounted at the interest rate borne by the Series A Notes, compounded
annually) of the total obligations of the lessee for rental payments during the
remaining term of the lease included in such Sale and Leaseback Transaction
(including any period for which such lease has been extended).
"Average Life" means, as of the date of determination, with
respect to any Indebtedness, the quotient obtained by dividing (i) the sum of
the products of the numbers of years from the date of determination to the
dates of each successive scheduled principal payment
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of such Indebtedness (or scheduled redemption or similar payment with respect
to Disqualified Stock) multiplied by the amount of such payment by (ii) the sum
of all such payments.
"Bank Credit Agreement" means any one or more credit
agreements (which may include or consist of revolving credit agreements or
similar arrangements) between Iridium and/or any Subsidiary and one or more
banks or other financial institutions providing financing for the business of
Iridium and its Subsidiaries. The Guaranteed Bank Facility shall be, and the
Secured Bank Facility (when executed and delivered by all the parties thereto)
shall be, Bank Credit Agreements.
"Board of Directors" means the Board of Directors of Iridium
or any committee thereof duly authorized to act on behalf of such Board.
"Build-out" means the construction, acquisition, improvement,
operation and development (including all costs related thereto) of the IRIDIUM
System up to the occurrence of Commercial Activation and the construction,
acquisition, improvement and development (including all costs related thereto)
thereafter of contemplated enhancements to the IRIDIUM System described in the
Offering Memorandum.
"Business Day" means a day other than a Saturday, Sunday or
other day on which banking institutions in Massachusetts and New York State are
authorized or required by law to close.
"Capital" means Iridium Capital Corporation, a Delaware
corporation, and any successor Person to Capital.
"Capital Lease Obligation" means an obligation that is
required to be classified and accounted for as a capitalized lease for
financial reporting purposes in accordance with GAAP. The amount of
Indebtedness represented by a Capital Lease Obligation will be the capitalized
amount of such obligation determined in accordance with GAAP, and the Stated
Maturity thereof will be the date of the last scheduled payment of rent or any
other amount due under the relevant lease prior to the first date upon which
such lease may be terminated by the lessee without payment of a penalty.
"Capital Stock" of any Person means (i) in the case of a
corporation, corporate stock issued by such Person, (ii) in the case of an
association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock issued by
such Person, (iii) in the case of a partnership, partnership interests (whether
general or limited) issued by such Person, (iv) in the case of a limited
liability company, membership interests issued by such Person, (v) any other
interest or participation that confers on another Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person, and (vi) any rights (other than debt securities convertible into, or
exchangeable for, Capital Stock), warrants or options to purchase any of the
foregoing.
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"Change of Control" means the occurrence of any of the
following:
(a) one or more Dispositions which cause the amount of
Capital Stock of Iridium held directly by Motorola to be reduced by
more than 50% as compared to its direct holding of Capital Stock in
Iridium as of the Issue Date (in each such case without giving effect
to any rights, warrants or options to purchase Capital Stock of
Iridium, unless exercised prior thereto);
(b) the first day on which Iridium fails to own, of record
and beneficially, 100% of the Capital Stock of Capital (other than
directors' qualifying shares);
(c) any sale, lease, or other transfer (in one transaction or
in a series of related transactions) is made by Iridium or its
Restricted Subsidiaries of all or substantially all of the assets of
Iridium and its Restricted Subsidiaries to any Person (other than in
connection with the Asset Drop-Down Transaction (as defined in Section
5.01(b)); or
(d) the adoption of a plan relating to the liquidation or
dissolution of Iridium or Capital.
Notwithstanding the foregoing, a Change in Control shall not be deemed
to result from (x) the acquisition by IWCL, Motorola or any wholly-owned
subsidiary of Motorola of substantially all the assets of Iridium, (y) the
Asset Drop-Down Transaction or any transfer of assets or merger reversing the
Asset-Drop-Down Transaction, or (z) the merger of Iridium with and into IWCL,
Motorola or any wholly-owned subsidiary of Motorola.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commercial Activation" means the date on which Iridium
commences generally available commercial service on the IRIDIUM System.
"Consolidated Cash Flow" of Iridium means for any period the
Consolidated Net Income of Iridium and the consolidated Restricted Subsidiaries
for such period increased by (i) Consolidated Interest Expense of Iridium and
the consolidated Restricted Subsidiaries for such period, plus (ii)
Consolidated Income Tax Expense of Iridium and the consolidated Restricted
Subsidiaries for such period, plus (iii) the consolidated depreciation and
amortization expense included in the income statement of Iridium and the
consolidated Restricted Subsidiaries for such period (including any
depreciation of any asset that represents depreciation in respect of previously
capitalized interest), plus (iv) other non-cash charges of Iridium and the
consolidated Restricted Subsidiaries for such period deducted from consolidated
revenues in determining Consolidated Net Income for such period, minus (v)
non-cash items of Iridium and the consolidated Restricted Subsidiaries for such
period which increased consolidated revenues in determining Consolidated Net
Income for such period, minus (vi) the consolidated amortization expense
related to payments made by Iridium and the Restricted Subsidiaries to Motorola
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pursuant to the Operations and Maintenance Contract included in the income
statement of Iridium and the consolidated Restricted Subsidiaries for such
period.
"Consolidated Income Tax Expense" of any Person means for any
period the consolidated provision for income taxes of such Person and its
consolidated Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP or, so long as such Person is
treated as a partnership or other pass through entity for United States federal
income tax purposes, the Tax Amount paid by such Person during such period.
"Consolidated Interest Expense" for any Person means for any
period the consolidated interest expense included in a consolidated income
statement (without deduction of interest income) of such Person and its
consolidated Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, including without limitation or
duplication (or, to the extent not so included, with the addition of), (i) the
amortization of Indebtedness discounts; (ii) any payments or fees with respect
to letters of credit, bankers' acceptances or similar facilities; (iii) fees
with respect to Interest Rate or Currency Protection Agreements; (iv) Preferred
Stock dividends of such Person (other than with respect to Disqualified Stock)
declared and paid or payable; (v) accrued Disqualified Stock dividends of such
Person and all Restricted Subsidiaries of such Person, whether or not declared
or paid; (vi) interest on Indebtedness Guaranteed by such Person; (vii) the
portion of any rental obligation allocable to interest expense; and (viii)
capitalized interest.
"Consolidated Net Income" of any Person means for any period
the consolidated net income (or loss) of such Person and its consolidated
Restricted Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP; provided, however, that there is excluded therefrom (to
the extent not already excluded therefrom) (i) the net income (or loss) of any
Person acquired by such Person or a Restricted Subsidiary of such Person in a
pooling-of-interests transaction for any period prior to the date of such
transaction, (ii) the net income (but not the net loss) of any Restricted
Subsidiary of such Person which Restricted Subsidiary is subject to
restrictions which prevent the payment of dividends or the making of
distributions to such Person, but only to the extent of such restrictions,
(iii) the net income (or loss) of any Person that is not a Restricted
Subsidiary (including any Unrestricted Subsidiary) except to the extent of the
amount of dividends or other distributions actually paid to such Person by such
other Person during such period, (iv) gains or losses on Asset Dispositions by
Iridium or any Restricted Subsidiary, (v) all extraordinary gains and losses,
(vi) the cumulative effect of changes in accounting principles in the year of
adoption of such changes, (vii) non-cash gains or losses resulting from
fluctuations in currency exchange rates, and (viii) the tax effect of any of
the items described in clauses (i) through (vii) above; provided further,
however, that for purposes of any determination pursuant to Section 4.04, there
shall be deducted from the Consolidated Net Income of Iridium and the
Restricted Subsidiaries for such period an amount equal to the Tax Amount paid
by Iridium during such period.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person and its consolidated Restricted
Subsidiaries determined on a consolidated
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basis in accordance with GAAP, less amounts attributable to Disqualified Stock
of such Person; provided, however, that, with respect to Iridium, adjustments
following the date of the Indenture to the accounting books and records of
Iridium in accordance with Accounting Principles Board Opinions Nos. 16 and 17
(or successor opinions thereto) or otherwise resulting from the acquisition of
control of Iridium by another Person shall not be given effect to.
"Consolidation" means the consolidation of the accounts of
each of the Restricted Subsidiaries with those of the Issuers in accordance
with GAAP consistently applied; provided, however, that "Consolidation" shall
not include consolidation of the accounts of any Unrestricted Subsidiary, but
the interest of the Issuers or any Restricted Subsidiary in an Unrestricted
Subsidiary shall be accounted for as an investment. The term "Consolidated" or
"consolidated" has a correlative meaning.
"Debt to Capital Ratio" means on any date of determination for
Iridium and its Restricted Subsidiaries, on a consolidated basis, the ratio
(expressed as a percentage) of Outstanding Indebtedness on such date to Total
Invested Capital on such date.
"Debt to Cash Flow Ratio" means on any date of determination
(the "Determination Date") for Iridium and its Restricted Subsidiaries, on a
consolidated basis, the ratio of Outstanding Indebtedness on the Determination
Date to Consolidated Cash Flow for the four most recently completed fiscal
quarters immediately preceding the Determination Date (the "Measurement
Period") determined on a pro forma basis as if any Indebtedness to be Incurred
had been Incurred and the proceeds thereof had been applied on the first day of
the Measurement Period; provided, however, that in making such computations,
(i) the Consolidated Interest Expense attributable to interest on any proposed
Indebtedness bearing a floating interest rate shall be computed on a pro forma
basis as if the rate in effect on such Determination Date had been the
applicable rate for the entire Measurement Period, (ii) the Consolidated
Interest Expense attributable to interest on any Indebtedness under a revolving
credit facility shall be computed based upon the average daily balance of such
Indebtedness during such Measurement Period, (iii) in the event Iridium or any
of its Restricted Subsidiaries has made asset dispositions or acquisitions of
assets not in the ordinary course of business (including acquisitions of other
Persons by merger, consolidation or purchase of Capital Stock) or has repaid
Indebtedness or Incurred additional Indebtedness during or after such
Measurement Period, such computation shall be made on a pro forma basis as if
the asset dispositions, acquisitions, repayment or incurrence had taken place
on the first day of such Measurement Period, (iv) the net proceeds of the
Indebtedness to be Incurred shall be deemed to have been applied on the first
day of such Measurement Period to acquire direct obligations of the United
States government having a maturity most closely approximating the maturity of
the Indebtedness to be incurred (or Indebtedness incurred during or after such
Measurement Period); provided, however, that the adjustment in this clause (iv)
shall not be made if, and to the extent, that application of such net proceeds
has otherwise been fully reflected in the computation, and (v) the actual
application of the net proceeds of Indebtedness Incurred during or after such
Measurement Period shall be given pro forma effect as if such application had
taken place on the first day of such Measurement Period.
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"Default" means an event that is, or after the passing of time
or the giving of notice or both would be, an Event of Default.
"Definitive Series A Notes" means Series A Notes that are in
the form of Exhibit A or Exhibit B attached hereto that do not include the
information called for by footnote 1 thereof.
"Depositary" means, with respect to the Series A Notes
issuable or issued in whole or in part in global form, the Person specified in
Section 2.03 as the Depositary with respect to the Series A Notes, until a
successor shall have been appointed and becomes such pursuant to the applicable
provisions of this Indenture, and thereafter, "Depositary" shall mean or
include such successor.
"Disposition" means (i) the sale, transfer or other conveyance
by Motorola or any of its Subsidiaries (other than to a wholly owned Subsidiary
of Motorola) of (a) Iridium's membership interests or (b) equity interests in
any entity (an "intermediate entity") which owns, directly or indirectly,
Iridium's membership interests or (ii) the issue and sale by any such
intermediate entity of its equity securities to one or more third parties if
and to the extent the proceeds of such issue and sale are distributed by such
intermediate entity to Motorola or any of its Subsidiaries.
"Disqualified Stock" of any Person means any Capital Stock of
such Person which, by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable at the option of the holder
thereof), or upon the happening of any event, (i) matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, (ii) is
convertible or exchangeable for Indebtedness or Disqualified Stock, or (iii) is
redeemable at the option of the holder thereof, in whole or in part, in each
case on or prior to the earlier of the Stated Maturity of the Series A Notes or
the date on which no Series A Notes remain outstanding. Disqualified Stock
does not include any Capital Stock that is not otherwise Disqualified Stock if
by its terms the holders have the right to require the issuer to repurchase
such stock upon a Change of Control (or upon events substantially similar to a
Change of Control).
"Eligible Institution" means a commercial banking institution
that has combined capital and surplus of not less than $500 million or its
equivalent in foreign currency, whose debt is rated "A-3" or higher or "A-" or
higher according to Moody's Investors Service, Inc. or Standard & Poor's
Ratings Group (or such similar equivalent rating by at least one "nationally
recognized statistical rating organization" (as defined in Rule 436 under the
Securities Act)) respectively, at the time as of which any investment or
rollover therein is made.
"Equity Offering" means an offering made on a primary basis of
Capital Stock (other than Disqualified Stock) of IWCL or Iridium that results
in Net Cash Proceeds to IWCL or Iridium, as the case may be, provided, however,
if any such offering is an offering of the Capital
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Stock of IWCL only the Net Cash Proceeds thereof that are contributed to
Iridium shall be taken into consideration for the purposes of this definition.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended (or any successor act) and the rules and regulations thereunder.
"Exchange and Registration Rights Agreement" means the
Exchange and Registration Rights Agreement dated as of July 16, 1997 by and
among the Issuers and the Initial Purchasers, as such agreement may be amended,
modified, or supplemented from time to time in accordance with the terms
thereof.
"Exchange Offer" shall have the meaning set forth in the
Exchange and Registration Rights Agreement.
"Exchange Offer Registration Statement" means the registration
statement to be filed by the Issuers with the SEC with respect to an offer to
exchange the Initial Series A Notes for another series of notes of the Issuers
with substantially identical terms to the Initial Series A Notes.
"Existing Affiliate Agreements" means (i) the Space System
Contract, (ii) the Terrestrial Network Development Contract, (iii) the
Operations and Maintenance Contract, (iv) the Agreement Regarding Guarantee,
(v) the Master Subscription Agreement, (vi) the Interest Exchange Agreement,
(vii) the Share Issuance Agreement, (viii) the Management Services Agreement,
(ix) the agreement or agreements among Iridium, Motorola and other parties
thereto providing for the development, manufacture and sale of individual
subscriber equipment to be used in the IRIDIUM System, which agreement or
agreements are to be executed and delivered after the Issue Date as a condition
to borrowings under the Secured Bank Facility, (x) the Motorola MOU and any
subordination agreement entered into pursuant thereto, and (xi) any other
agreements with Affiliates or Related Persons of Iridium, existing on the Issue
Date and listed on Schedule I to this Indenture.
"Foreign Subsidiary" means, with respect to any Person, any
Subsidiary of such Person which is incorporated or otherwise organized under
the laws of any jurisdiction other than the United States of America, any state
thereof or the District of Columbia and substantially all of whose consolidated
assets are located primarily outside of the United States of America.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the Issue Date, including those set
forth in (i) the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants, (ii) statements and
pronouncements of the Financial Accounting Standards Board, (iii) such other
statements by such other entity as approved by a significant segment of the
accounting profession and (iv) the rules and regulations of the SEC governing
the inclusion of financial statements (including pro forma financial
statements) in periodic reports required to be filed pursuant to Section 13 of
the Exchange Act, including opinions and pronouncements in
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staff accounting bulletins and similar written statements from the accounting
staff of the SEC. All ratios and computations based on GAAP contained in the
Indenture shall be computed in conformity with GAAP.
"Global Note" means a Series A Note that is in the form of
Exhibit A or Exhibit B hereto that includes the information called for by
footnote 1 thereof.
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America for the payment of
which obligations or guarantee the full faith and credit of the United States
is pledged and which have a remaining weighted Average Life to maturity of not
more than one year from the date of Investment therein.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness of any other
Person (the "primary obligor") through an agreement enforceable by or for the
benefit of the holder of such Indebtedness and any such obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness, (ii)
to purchase property, securities or services for the purpose of assuring the
holder of such Indebtedness of the payment of such Indebtedness, (iii) to
maintain working capital, equity capital or other financial statement condition
or liquidity of the primary obligor so as to enable the primary obligor to pay
such Indebtedness, or (iv) to act as a co-obligor with such Person on its
Indebtedness (and "Guaranteed" and "Guaranteeing" shall have meanings
correlative to the foregoing); provided, however, that the Guarantee by any
Person shall not include endorsements by such Person for collection or deposit,
in either case, in the ordinary course of business.
"Guaranteed Bank Facility" means the credit facility
established by the credit agreement dated as of August 21, 1996 by and among
Iridium and certain lenders providing for an unsecured $750 million revolving
credit facility, as amended from time to time.
"Guarantor Subsidiary" means any Person that has issued a
Subsidiary Guaranty by execution and delivery of this Indenture, including each
of the Initial Guarantors.
"Holders" means the registered holders from time to time of
the Series A Notes.
"IAI" means an institutional "accredited investor" as
described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Incur" means, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (by conversion, exchange or
otherwise), assume, Guarantee or otherwise become liable in respect of such
Indebtedness or other obligation including by acquisition of Subsidiaries or
the recording, as required pursuant to GAAP or otherwise, of any such
Indebtedness or other obligation on the balance sheet of such Person (and
"Incurrence", "Incurred" and "Incurring" have meanings correlative to the
foregoing); provided, however, that a change in GAAP that results in an
obligation of such Person that exists at such time becoming
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Indebtedness shall not be deemed an Incurrence of such Indebtedness and that
neither the accrual of interest nor the accretion of original issue discount
shall be deemed an Incurrence of Indebtedness. Notwithstanding the foregoing,
Iridium may elect to treat all or any portion of revolving credit debt of
Iridium or a Subsidiary as being Incurred from and after any date beginning the
date the revolving credit commitment is extended to Iridium or a Subsidiary, by
furnishing notice thereof to the Trustee, and any borrowings or reborrowings by
Iridium or a Subsidiary under such commitment up to the amount of such
commitment designated by Iridium as Incurred shall not be deemed to be new
Incurrences of Indebtedness by Iridium or such Subsidiary; provided, however,
that in such event the undrawn portion of any such revolving credit debt shall
be deemed to be outstanding Indebtedness until such time as the commitment
thereunder is terminated. The accretion of principal of a non-interest bearing
or other discount security shall not be deemed the Incurrence of Indebtedness.
"Indebtedness" means (without duplication), with respect to
any Person, whether recourse is to all or a portion of the assets of such
Person and whether or not contingent, (i) every obligation of such Person for
money borrowed, (ii) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including any such obligations
Incurred in connection with the acquisition of property, assets or businesses,
(iii) every reimbursement obligation of such Person with respect to letters of
credit, bankers' acceptances or similar facilities issued for the account of
such Person, (iv) every obligation of such Person issued or assumed as the
deferred purchase price of property or services (including securities
repurchase agreements but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business which are not overdue by
more than 30 days or which are being contested in good faith), (v) every
Capital Lease Obligation of such Person, (vi) all Receivables Sales of such
Person, together with any obligation of such Person to pay any discount,
interest, fees, indemnities, penalties, recourse, expenses or other amounts in
connection therewith, (vii) all obligations to redeem or repurchase outstanding
Disqualified Stock issued by such Person, (viii) all Attributable Indebtedness,
(ix) every obligation under Interest Rate or Currency Protection Agreements of
such Person, (x) every obligation of the type referred to in clauses (i)
through (ix) of another Person secured by any Lien on any property or asset of
such Person (whether or not such obligation is assumed by such Person), the
amount of such obligation being deemed to be the lesser of the fair market
value of such property or assets and the amount of the obligation so secured
and (xi) every obligation of the type referred to in clauses (i) through (x) of
another Person and all dividends of another Person the payment of which, in
either case, such Person has Guaranteed. The "amount" or "principal amount" of
Indebtedness at any time of determination as used herein represented by (a) any
Indebtedness issued at a price that is less than the principal amount at
maturity thereof, shall be the amount of the liability in respect thereof
determined in accordance with GAAP, (b) any Receivables Sale, shall be the
amount of the unrecovered capital or principal investment of the purchaser
(other than Iridium or a Wholly-Owned Restricted Subsidiary) thereof, excluding
amounts representative of yield or interest earned on such investment, (c) any
Disqualified Stock, shall be the maximum fixed redemption or repurchase price
in respect thereof, (d) any Capital Lease Obligation, shall be determined in
accordance with the definition thereof and (e) any Permitted Interest Rate or
Currency Protection Agreement, shall be zero. In no event shall Indebtedness
include any
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liability for taxes. For purposes of determining any particular amount of
Indebtedness, Guarantees or Liens with respect to letters of credit supporting
Indebtedness otherwise included in the determination of a particular amount
shall not be included. The term "Indebtedness" does not include any
obligations of Iridium or any Restricted Subsidiary (x) under the Space System
Contract, the Operations and Maintenance Contract or the Terrestrial Network
Development Contract (including any agreed upon deferrals of payment
obligations thereunder) or (y) in respect of amounts owing to gateway operators
and other service providers in connection with the clearinghouse system to be
established and operated by Iridium (as described under "Business--The IRIDIUM
System--Business Support Systems" in the Offering Memorandum).
"Independent Financial Advisor" means an accounting, appraisal
or investment banking firm of nationally recognized standing that is, in the
judgment of the Board of Directors, qualified to perform the task for which it
has been engaged and disinterested and independent with respect to the Note
Issuers and their Subsidiaries and Affiliates.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Initial Guarantors" means Iridium Roaming LLC and Iridium IP
LLC, each a Delaware limited liability company.
"Initial Purchasers" means Chase Securities Inc. and Merrill
Lynch, Pierce, Fenner & Smith Incorporated.
"Interest Exchange Agreement" means the Interest Exchange
Agreement among Iridium and IWCL, dated June 9, 1997, as amended from time to
time.
"Interest Rate or Currency Protection Agreement" of any Person
means any forward contract, futures contract, swap, option or other financial
agreement or arrangement (including, without limitation, caps, floors, collars
and similar agreements) relating to, or the value of which is dependent upon,
interest rates or currency exchange rates or indices.
"Investment" by any Person means any direct or indirect loan,
advance or other extension of credit or capital contribution (by means of
transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise) to, or purchase or
acquisition of Capital Stock, bonds, notes, debentures or other securities or
evidence of Indebtedness issued by, any other Person, including any payment on
a Guarantee of any obligation of such other Person, but excluding any loan,
advance or extension of credit to an employee of Iridium or any Restricted
Subsidiary in the ordinary course of business, accounts receivable and other
commercially reasonable extensions of trade credit. A delay in the purchase of
any of Iridium's Capital Stock under a purchase or similar agreement shall not
be deemed to be an Investment by Iridium in the purchaser.
"Investment Grade Rating" means a rating equal to or higher
than "Baa3" (or the equivalent) by Moody's Investors Service, Inc. (or any
successor to the rating agency business
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thereof) and "BBB-" (or the equivalent) by Standard & Poor's Ratings Group (or
any successor to the rating agency business thereof).
"Iridium" means Iridium LLC, a Delaware limited liability
corporation, and any successor Person to Iridium.
"IRIDIUM System" means Iridium's global mobile wireless
communications system as described in the Offering Memorandum.
"Issue Date" means the date on which the Units are first
issued and delivered.
"Issuers" means the parties named as such in this Indenture
until a successor replaces one or more of such parties pursuant to the
applicable provisions of this Indenture and, thereafter, includes such
successor and, for purposes of any provision contained herein and required by
the TIA, each other obligor on the indenture securities (within the meaning of
the TIA). In particular, upon execution and delivery of this Indenture, the
"Issuers" shall mean Iridium, Capital and the Initial Guarantors.
"IWCL" means Iridium World Communication Ltd., a Bermuda
company, and any successor Person to Iridium.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, Receivables Sale,
deposit arrangement, security interest, lien, charge, easement (other than any
easement not materially impairing usefulness or marketability), encumbrance,
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever on or with respect to such property or assets
(including, without limitation, any conditional sale or other title retention
agreement having substantially the same economic effect as any of the foregoing
or any Sale and Leaseback Transaction).
"Liquidated Damages" shall have the meaning set forth in the
Exchange and Registration Rights Agreement.
"LLC Agreement" means the Limited Liability Company Agreement
of Iridium, dated as of July 29, 1996, as amended from time to time.
"Management Services Agreement" means the Management Services
Agreement between Iridium and IWCL, dated as of June 9, 1997, as amended from
time to time.
"Marketable Securities" means: (i) Government Securities; (ii)
any time deposit account, money market deposit and certificate of deposit
maturing not more than 270 days after the date of acquisition issued by, or
time deposit of, an Eligible Institution; (iii) commercial paper maturing not
more than 270 days after the date of acquisition issued by a corporation (other
than an Affiliate of Iridium) with a rating, at the time as of which any
investment therein is
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made, of "P-1" or higher according to Moody's Investors Service, Inc. or "A-1"
or higher according to Standard & Poor's Ratings Group (or such similar
equivalent rating by at least one "nationally recognized statistical rating
organization" (as defined in Rule 436 under the Securities Act)); (iv) any
banker's acceptances or money market deposit accounts issued or offered by an
Eligible Institution; (v) repurchase obligations with a term of not more than
seven days for Government Securities entered into with an Eligible Institution;
and (vi) any fund investing exclusively in investments of the types described
in clauses (i) through (v) above.
"Master Subscription Agreement" means the Agreement between
Iridium and IWCL, dated as of June 30, 1997, as amended from time to time.
"Motorola" means Motorola, Inc., a Delaware corporation, and
any successor Person to Motorola.
"Motorola Additional Guarantee" means the commitment by
Motorola pursuant to the Motorola MOU to guarantee up to $350 million of
Indebtedness (inclusive of principal and interest), under the Guaranteed Bank
Facility or another credit agreement on identical terms, in excess of the
Motorola Guarantee.
"Motorola Guarantee" means the guarantee by Motorola of up to
$750 million of Indebtedness under the Guaranteed Bank Facility.
"Motorola MOU" means the Memorandum of Understanding, dated as
of July 11, 1997, between Iridium and Motorola, as amended from time to time.
"Net Available Proceeds" from any Asset Disposition by any
Person means cash or Marketable Securities received (including by way of sale
or discounting of a note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquiror of Indebtedness or other obligations relating to such properties or
assets) therefrom by such Person, net of (i) all legal, title and recording tax
expenses, commissions and other fees and expenses Incurred and all federal,
state, provincial, foreign and local taxes (including taxes payable upon
payment or other distribution of funds from a foreign subsidiary to Iridium or
another Subsidiary of Iridium) required to be accrued as a liability as a
consequence of such Asset Disposition, (ii) all payments made by such Person or
its Restricted Subsidiaries on any Indebtedness which is secured by such assets
in accordance with the terms of any Lien upon or with respect to such assets or
which must by the terms of such Lien, or in order to obtain a necessary consent
to such Asset Disposition or by applicable law, be repaid out of the proceeds
from such Asset Disposition, (iii) all distributions and other payments made to
minority interest holders in Restricted Subsidiaries of such Person or joint
ventures as a result of such Asset Disposition, (iv) appropriate amounts to be
provided by such Person or any Restricted Subsidiary thereof, as the case may
be, as a reserve in accordance with GAAP against any liabilities associated
with such assets and retained by such Person or any Restricted Subsidiary
thereof, as the case may be, after such Asset Disposition, including, without
limitation, liabilities under any indemnification obligations and severance and
other employee termination costs
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associated with such Asset Disposition, in each case as determined by the Board
of Directors, in its reasonable good faith judgment evidenced by a resolution
filed with the Trustee; provided, however, that any reduction in such reserve
within twelve months following the consummation of such Asset Disposition will
be treated for all purposes of this Indenture and the Series A Notes as a new
Asset Disposition at the time of such reduction with Net Available Proceeds
equal to the amount of such reduction, and (v) any consideration for an Asset
Disposition (which would otherwise constitute Net Available Proceeds) that is
required to be held in escrow pending determination of whether a purchase price
adjustment will be made, but amounts under this clause (v) will become Net
Available Proceeds at such time and to the extent such amounts are released to
such Person.
"Net Cash Proceeds," with respect to any issuance or sale of
Capital Stock, means the cash proceeds of such issuance or sale, net of
attorneys' fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"Non-U.S. Person" means a Person who is not a U.S. Person, as
such term is defined in Rule 902 of the Securities Act.
"Offer to Purchase" means a written offer (the "Offer") sent
by the Note Issuers by first class mail, postage prepaid, to each Holder at his
address appearing in the note register on the date of the Offer offering to
purchase up to the principal amount of Series A Notes specified in such Offer
at the purchase price specified in such Offer (as determined in accordance with
Section 4.06 of this Indenture). Unless otherwise required by applicable law,
the Offer shall specify an expiration date (the "Expiration Date") of the Offer
to Purchase which shall be, subject to any contrary requirements of applicable
law, not less than 30 days or more than 60 days after the date of such Offer
and a settlement date (the "Purchase Date") for purchase of Series A Notes
within five Business Days after the Expiration Date. The Note Issuers shall
notify the Trustee in writing at least 15 Business Days (or such shorter period
as is acceptable to the Trustee) prior to the mailing of the Offer of the Note
Issuers' obligation to make an Offer to Purchase, and the Offer shall be mailed
by the Note Issuers or, at the Note Issuers' request, by the Trustee in the
name and at the expense of the Note Issuers. The Offer shall contain
information concerning the business of Iridium and its Subsidiaries which
Iridium in good faith believes shall enable such holders to make an informed
decision with respect to the Offer to Purchase (which at a minimum shall
include (i) the most recent annual and quarterly financial statements and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" contained in the documents required to be filed with the Trustee
pursuant to this Indenture (which requirements may be satisfied by delivery of
such documents together with the Offer), (ii) a description of material
developments in Iridium's business subsequent to the date of the latest of such
financial statements referred to in clause (i) (including a description of the
events requiring Iridium to make the Offer to Purchase), (iii) if applicable,
appropriate pro forma financial information concerning the Offer to Purchase
and the events requiring Iridium to make the Offer to Purchase and (iv) any
other information required by applicable law to be included
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therein). The Offer shall contain all instructions and materials necessary to
enable such holders to tender Series A Notes pursuant to the Offer to Purchase.
"Offering Memorandum" means the offering memorandum, dated as
of July 11, 1997, relating to the offering of the Units and the Initial Series
B Notes.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President, the
Treasurer, the Secretary or any Assistant Secretary of such Person.
"Officers' Certificate" means a certificate signed by two
Officers.
"Operations and Maintenance Contract" means the IRIDIUM System
Operations and Maintenance Contract between Iridium and Motorola, dated as of
July 29, 1993, as amended from time to time.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an employee of or
counsel to Iridium.
"Outstanding Indebtedness" means the aggregate consolidated
principal amount (or the accreted value in the case of any Indebtedness issued
at a discount) of Indebtedness of Iridium and its Restricted Subsidiaries, on a
consolidated basis, outstanding as of the date of determination.
"pari passu", when used with respect to the ranking of any
Indebtedness of any Person in relation to other Indebtedness of such Person,
means that each such Indebtedness (a) either (i) is not subordinated in right
of payment to any other Indebtedness of such Person or (ii) is subordinate in
right of payment to the same Indebtedness of such Person as is the other and is
so subordinate to the same extent and (b) is not subordinate in right of
payment to the other or to any Indebtedness of such Person as to which the
other is not so subordinate.
"Permitted Interest Rate or Currency Protection Agreement" of
any Person means any Interest Rate or Currency Protection Agreement entered
into with one or more financial institutions that is designed to protect such
Person against fluctuations in interest rates or currency exchange rates with
respect to Indebtedness Incurred and which shall have a notional amount no
greater than the payments due with respect to the Indebtedness being hedged
thereby, or with respect to obligations or receivables denominated in foreign
currencies, and not for purposes of speculation.
"Permitted Investment" means an Investment by Iridium or any
Restricted Subsidiary (i) in any Person as a result of which such Person
becomes a Restricted Subsidiary, the primary business of which is to engage in
all or a portion of a Related Business, (ii) in Marketable Securities, (iii) in
Permitted Interest Rate or Currency Protection Agreements, (iv) made as a
result of the receipt of noncash consideration from an Asset Disposition that
was
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made pursuant to and in compliance with Section 4.06 herein, (v) consisting of
loans or advances to employees of Iridium or any Restricted Subsidiary made in
the ordinary course of business not to exceed $2,000,000 in the aggregate
outstanding at any one time and (vi) in any Person for a purpose which is
related, ancillary or complementary to the businesses of Iridium and the
Restricted Subsidiaries on the date such Investment is made; provided that the
aggregate amount of Investments made pursuant to this clause (vi) and then
outstanding does not exceed $100,000,000. The amount of Investments
outstanding pursuant to clause (vi) of the prior sentence shall be included in
the calculation of the aggregate amount of Restricted Payments made since the
Issue Date pursuant to Section 4.04.
"Permitted Liens" means:
(i) Prior to Commercial Activation, Liens to secure
up to $750,000,000 in principal amount of Indebtedness
permitted to be incurred pursuant to Section 4.03(b)(i);
(ii) After Commercial Activation, Liens to secure up
to $1,700,000,000 in principal amount of Indebtedness
(inclusive of the Indebtedness secured by the Liens described
in clause (i) above and any secured Indebtedness which
refinanced such Indebtedness) permitted to be Incurred
pursuant to Section 4.03;
(iii) Liens in favor of Holders of the Series A
Notes, the Trustee, the holders of the Series B Notes and the
trustee under the Series B Indenture;
(iv) Liens in favor of the Issuers or a Wholly-Owned
Restricted Subsidiary;
(v) Liens on property at the time such Person or any
of its Subsidiaries acquires such property, including any
acquisition by means of a merger or consolidation with or into
such Person or a Subsidiary of such Person, other than any
property delivered pursuant to the Space System Contract or
the Operations and Maintenance Contract; provided, however,
that such Liens are not created, incurred or assumed in
connection with, or in contemplation of, such acquisition;
provided further, however, that the Liens may not extend to
any other property owned by such Person or any of its
Subsidiaries;
(vi) other than in connection with Indebtedness, any
Lien arising in the ordinary course of business (a) to secure
payments of workers' compensation, unemployment insurance,
pension or other social security or retirement benefits, or to
secure the performance of bids, tenders, leases, progress
payments, contracts (other than for the payment of money) or
to secure public or statutory obligations of Iridium or any
Restricted Subsidiary, or to secure surety or appeal bonds to
which Iridium or any Restricted Subsidiary is a party, (b)
imposed by law dealing with materialmen's, mechanics',
workmen's, repairmen's, warehousemen's
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landlords', vendors' or carriers' Liens created by law, or
deposits or pledges which are not yet due or, if due, the
validity of which is being contested in good faith by Iridium
or any Restricted Subsidiary by appropriate proceedings
promptly instituted and diligently conducted and against which
Iridium has established appropriate reserves in accordance
with GAAP, (c) rights of financial institutions to set off and
chargeback arising by operation of law, (d) rights, if any, of
gateway operators and other service providers to setoff and
chargeback arising under agreements between Iridium and any
such Person in respect of clearinghouse services provided by
Iridium to such Person, and (e) similar Liens;
(vii) servitudes, licenses, easements, encumbrances,
restrictions, rights-of-way and rights in the nature of
easements or similar charges which shall not in the aggregate
materially adversely impair the use of the subject property by
Iridium or a Restricted Subsidiary;
(viii) zoning and building by-laws and ordinances,
municipal bylaws and regulations, and restrictive covenants,
which do not materially interfere with the use of the subject
property by Iridium or a Restricted Subsidiary;
(ix) Liens to secure the performance of statutory
obligations, surety or appeal bonds, performance bonds or
other obligations of a like nature incurred in the ordinary
course of business;
(x) Liens existing on the Issue Date;
(xi) Liens for taxes, assessments or governmental
charges or claims that are not yet delinquent or that are
being contested in good faith by appropriate proceedings
promptly instituted and diligently concluded; provided,
however, that any reserve or other appropriate provision as
shall be required in conformity with GAAP shall have been made
therefor;
(xii) any interest in or title of a lessor to any
property subject to a Capital Lease Obligation which is
permitted under this Indenture; and
(xiii) Liens incurred in the ordinary course of
business of the Issuers and the Restricted Subsidiaries with
respect to obligations that do not exceed $10,000,000 at any
one time outstanding and that:
(a) are not incurred in connection with the
borrowing of money or the obtaining of advances or
credit (other than trade credit in the ordinary
course of business); and
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(b) do not in the aggregate materially
detract from the value of the property or materially
impair the use thereof in the operation of business
by Iridium and the Restricted Subsidiaries.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Preferred Stock" of any Person means Capital Stock of such
Person of any class or classes (however designated) that ranks prior, as to the
payment of dividends or as to the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding up of such Person, to shares of
Capital Stock of any other class of such Person.
"principal" of a Series A Note means the principal of the
Series A Note plus the premium, if any, payable on the Series A Note that is
due or overdue or is to become due at the relevant time.
"Private Exchange" means the offer by the Note Issuers,
pursuant to the Exchange and Registration Rights Agreement, to the Initial
Purchasers to issue and deliver to each Initial Purchaser, in exchange for the
Initial Series A Notes held by the Initial Purchaser as part of its initial
distribution, a like aggregate principal amount of Private Exchange Series A
Notes.
"Private Placement Legend" means the legend set forth under
the caption Restricted Series A Note Legend in the form of the Initial Series A
Note in Exhibit A hereto.
"Ratings Agencies" means Standard & Poor's Rating Group and
Moody's Investors Services, Inc. or any successor to the respective credit
rating businesses thereof.
"Receivables" means receivables, chattel paper, instruments,
documents or intangibles evidencing or relating to the right to payment of
money in respect of the sale of goods or services.
"Receivables Sale" of any Person means any sale of Receivables
of such Person (pursuant to a purchase facility or otherwise), other than (x)
any sale of Receivables by such Person as to which (i) such Person is neither
directly or indirectly liable (as guarantor or otherwise) nor provides credit
support of any kind and (ii) the purchaser of such Receivables has no recourse
to any assets or property of such Person or (y) in connection with a
disposition of the business operations of such Person relating thereto or a
disposition of defaulted Receivables for purpose of collection and not as a
financing arrangement.
"Refinance" means, in respect of any Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue other Indebtedness in exchange or replacement for, such Indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
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"Refinancing Indebtedness" means Indebtedness that Refinances
any Indebtedness of Iridium or any Restricted Subsidiary existing on the Issue
Date or Incurred in compliance with this Indenture, including Indebtedness that
Refinances Refinancing Indebtedness; provided, however, that except in the case
of a Refinancing of the Guaranteed Bank Facility after any extension thereof
(as contemplated by the Motorola MOU) (i) such Refinancing Indebtedness has a
Stated Maturity no earlier than the Stated Maturity of the Indebtedness being
Refinanced, (ii) such Refinancing Indebtedness has an Average Life at the time
such Refinancing Indebtedness is Incurred that is equal to or greater than the
Average Life of the Indebtedness being Refinanced, (iii) such Refinancing
Indebtedness has an aggregate principal amount (or if Incurred with original
issue discount, an aggregate issue price) that is equal to or less than the
aggregate principal amount (or if Incurred with original issue discount, the
aggregate accreted value) then outstanding or committed (plus accrued and
unpaid interest and fees and expenses, including any premium and defeasance
costs) under the Indebtedness being Refinanced and (iv) in the event the
Indebtedness being Refinanced constitutes a Subordinated Obligation, the
Refinancing Indebtedness is subordinated to the Series A Notes to at least the
same extent as the Indebtedness being Refinanced; provided further, however,
that Refinancing Indebtedness shall not include Indebtedness of the Issuers or
a Restricted Subsidiary that Refinances Indebtedness of an Unrestricted
Subsidiary.
"Registered Exchange Offer" shall have the meaning set forth
in the Exchange and Registration Rights Agreement.
"Related Business" means the business of developing, owning,
engaging in and dealing with all or any part of the business of the provision
of telecommunications services and businesses and (i) reasonably related
extensions thereof, including but not limited to the manufacture, purchase,
ownership, operation, leasing, licensing, financing and selling of, and
generally dealing in or with, communications satellites, earth stations,
gateways, ground infrastructure and subscriber equipment, used or intended for
use with telecommunications services and businesses and (ii) any other
activities that are reasonably related to the provision of telecommunications
services and businesses.
"Related Person" of any Person means any other Person directly
or indirectly owning (a) 5% or more of the outstanding Capital Stock of such
Person or (b) 5% or more of the combined voting power of the Voting Stock of
such Person.
"Reserve Capital Call" means the agreement of each of
Iridium's members to purchase additional Class I Interests in Iridium pursuant
to Section 4.02 of the LLC Agreement.
"Restricted Subsidiary" means any Subsidiary of Iridium,
whether existing on or after the Issue Date, unless such Subsidiary is an
Unrestricted Subsidiary.
"Sale and Leaseback Transaction" means an arrangement relating
to property now owned or hereafter acquired by Iridium or a Restricted
Subsidiary whereby Iridium or such
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Restricted Subsidiary transfers such property to a Person and Iridium or such
Restricted Subsidiary leases it from such Person.
"SEC" means the Securities and Exchange Commission and any
successor agency.
"Secured Indebtedness" means any Indebtedness of either Note
Issuer secured by a Lien. "Secured Indebtedness" of any Guarantor Subsidiary
has a correlative meaning.
"Securities Act" means the Securities Act of 1933, as amended
(or any successor act) and the rules and regulations thereunder.
"Series B Indenture" means the Indenture, dated as of July 16,
1997, among the Issuers and State Street Bank and Trust Company, as amended or
supplemented from time to time, relating to the Series B Notes.
"Series B Notes" means the Initial Series B Notes and any
notes issued in exchange therefor pursuant to the Exchange and Registration
Rights Agreement.
"Share Issuance Agreement" means the Share Issuance Agreement
between Iridium and IWCL, dated as of June 9, 1997, as amended from time to
time.
"Significant Subsidiary" means a Restricted Subsidiary that is
a "significant subsidiary" as defined in Rule 1-02(w) of Regulation S-X under
the Securities Act and the Exchange Act as in effect on the Issue Date.
"Space System Contract" means the Iridium Space System
Contract between Iridium and Motorola, dated as of July 29, 1993, as amended
from time to time.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
"Subordinated Obligation" means any Indebtedness of either
Note Issuer (whether outstanding on the Issue Date or thereafter Incurred)
which is subordinate or junior in right of payment to the Series A Notes
pursuant to a written agreement to that effect. Iridium's 14 1/2% Senior
Subordinated Notes due 2006 shall be Subordinated Obligations.
"Subsidiary" of any Person means (i) a corporation more than
50% of the combined voting power of the outstanding Voting Stock of which is
owned, directly or indirectly, by such Person or by one or more other
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person or (ii) any other Person (other than a corporation) in
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which such Person, or one or more other Subsidiaries of such Person or such
Person and one or more other Subsidiaries of such Person, directly or
indirectly, has at least a majority ownership and power to direct the policies,
management and affairs thereof.
"Subsidiary Guaranty" means any Guarantee of the Series A
Notes which may from time to time be executed and delivered pursuant to the
terms of this Indenture. Each such Subsidiary Guaranty shall be in the form
prescribed in this Indenture.
"Tax Amount" means the aggregate amount of distributions
required to be made by Iridium to its members under Section 3.07(c) of the LLC
Agreement (or a successor provision relating to distributions by Iridium with
respect to members' U.S. tax liability). Notwithstanding anything to the
contrary, Tax Amount shall not include taxes resulting from Iridium's
reorganization as or change in the status to a corporation.
"Terrestrial Network Development Contract" means the
Terrestrial Network Development Contract between Iridium and Motorola, entered
into June, 1995, as amended from time to time.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date of this Indenture.
"Total Invested Capital" means, as of any date of
determination, the sum of (a) Total Pro Forma Consolidated Indebtedness as of
such date and (b) $1,982,000,000 plus the aggregate proceeds received by
Iridium or any Restricted Subsidiary in respect of the issuance of Capital
Stock of Iridium, including the fair value of property other than cash (as
determined in good faith by the Board of Directors in a resolution filed with
the Trustee), less any redemptions of, or dividends or other distributions on,
Capital Stock of Iridium (other than any Tax Amount or any dividend or
distribution in Capital Stock) made after the Issue Date and on or prior to the
date of determination.
"Total Pro Forma Consolidated Indebtedness" means, as of any
date of determination, after giving effect to any Indebtedness to be Incurred
by Iridium and its Restricted Subsidiaries on a consolidated basis on such date
and the application of the proceeds therefrom, the aggregate amount of
Outstanding Indebtedness as of such date determined on a consolidated basis in
accordance with GAAP and which would appear on the consolidated balance sheet
of Iridium.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor.
"Trust Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate trust matters.
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"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"Unrestricted Subsidiary" means (i) any Subsidiary of Iridium
designated as such by the Board of Directors as set forth below where (a)
neither Iridium nor any of its other Subsidiaries (other than another
Unrestricted Subsidiary) (1) provides credit support for, or Guarantee of, any
Indebtedness of such Subsidiary or any Subsidiary of such Subsidiary (including
any undertaking, agreement or instrument evidencing such Indebtedness), (2) is
directly or indirectly liable for any Indebtedness of such Subsidiary or any
Subsidiary of such Subsidiary, or (3) has any obligation to make additional
Investments (other than Permitted Investments) in such Subsidiary or any
Subsidiary of such Subsidiary (other than, with respect to clauses (1) and (2)
above, in the case of any Indebtedness of Iridium or any Restricted Subsidiary,
the proceeds of which were received by Iridium or a Restricted Subsidiary, that
is permitted under Section 4.03 as to which the Unrestricted Subsidiary
provides a Guarantee) and (b) such Subsidiary and each Subsidiary of such
Subsidiary has at least one director on its board of directors that is not a
director or executive officer of Iridium or any Restricted Subsidiary, and (ii)
any Subsidiary of an Unrestricted Subsidiary. The Board of Directors may
designate any Subsidiary to be an Unrestricted Subsidiary by filing a
resolution to such effect with the Trustees unless such Subsidiary or any
Subsidiary of such Subsidiary owns any Capital Stock or Indebtedness of, or
owns or holds any Lien (other than a Permitted Lien) on any property of,
Iridium or any other Subsidiary of Iridium which is not a Subsidiary of the
Subsidiary to be so designated or otherwise an Unrestricted Subsidiary;
provided, however, that either (A) the Subsidiary to be so designated has total
assets of $1,000 or less or (B) immediately after giving effect to such
designation, Iridium could incur an additional $1.00 of Indebtedness pursuant
to the first sentence of paragraph (a) under Section 4.03; and provided
further, however, that Iridium could make a Restricted Payment in an amount
equal to the greater of the fair market value and the book value of such
Subsidiary pursuant to Section 4.04 and such amount is thereafter treated as a
Restricted Payment for the purpose of calculating the aggregate amount
available for Restricted Payments thereunder. The Board of Directors may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary by filing a
resolution to such effect with the applicable Trustee, provided that,
immediately after giving effect to such designation, Iridium could incur an
additional $1.00 of Indebtedness pursuant to the first sentence of paragraph
(a) under Section 4.03 and such Subsidiary (as well as each of Iridium and the
other Guarantor Subsidiaries) complies with Section 4.15 as if such Subsidiary
were a newly created Subsidiary. Notwithstanding the foregoing, neither
Capital nor any of its Subsidiaries may be Unrestricted Subsidiaries.
"Vendor Financing Facility" means any agreements between
Iridium and/or any Subsidiary of Iridium and one or more vendors or lessors of
equipment to Iridium and/or any Subsidiary (or any affiliate of any such vendor
or lessor) providing financing for the acquisition by Iridium or any such
Subsidiary of equipment or services from any such vendor or lessor.
"Voting Stock" of any Person means Capital Stock of such
Person which ordinarily has voting power for the election of directors (or
persons performing similar functions)
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of such Person, whether at all times or only so long as no senior class of
securities has such voting power by reason of any contingency.
"Wholly-Owned Restricted Subsidiary" means, with respect to
Iridium, a Restricted Subsidiary of Iridium all of the outstanding Capital
Stock or other ownership interests of which (other than Capital Stock
constituting directors' qualifying shares or interests held by directors or
shares or interests required to be held by foreign nationals, in each case to
the extent mandated by applicable law) are owned by Iridium or by one or more
Wholly-Owned Restricted Subsidiaries of Iridium, or by Iridium and one or more
Wholly-Owned Restricted Subsidiaries of Iridium.
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- ---------
"Affiliate Transaction" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.07
"Agent Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.13
"Asset Drop-Down Transaction" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.01(b)
"Bankruptcy Law" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Class A Common Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
"covenant defeasance option" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01(b)
"Custodian" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Exchange Series A Note" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction
"Global Series A Notes" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(c)
"Initial Series A Notes" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction
"Initial Series B Notes" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
"Insurance Proceeds" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.16
"legal defeasance option" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01(b)
"Legal Holiday" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.08
"Obligations" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.01
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
"Private Exchange Series A Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction
"Purchase Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
"QIBs" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(b)
"Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
"Regulation S Permanent Global Series A Notes" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(c)
"Regulation S Restricted Period" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.01
"Regulation S Series A Notes Exchange Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(c)
"Regulation S Temporary Global Series A Notes" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(c)
"Restricted Payment" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04
"Rule 144A" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(b)
"Rule 144A Global Series A Note" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(b)
"Series A Notes" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction
"Successor Companies" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.01
"Transfer Restricted Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.06
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"Units" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
"Warrant Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
"Warrant Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
"Warrants" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
"Warrant Shares" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
SECTION 1.03. Incorporation by Reference of Trust Indenture
Act. This Indenture is subject to the mandatory provisions of the TIA which
are incorporated by reference in and made a part of this Indenture. The
following TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Series A Notes.
"indenture Securityholder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Issuers and
any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule
have the meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in
the plural include the singular unless the context otherwise requires;
(6) unsecured Indebtedness shall not be deemed to be
subordinate or junior to Secured Indebtedness of either Note Issuer or
a Guarantor Subsidiary, as the case may be, merely by virtue of its
nature as unsecured Indebtedness; and
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(7) the principal amount of any noninterest bearing or
other discount security at any date shall be the principal amount
thereof that would be shown on a balance sheet of the issuer dated
such date prepared in accordance with GAAP and accretion of principal
on such security shall be deemed to be the Incurrence of Indebtedness.
ARTICLE II
The Series A Notes
SECTION 2.01. Form and Dating. (a) The Initial Series A
Notes and the Trustee's certificate of authentication thereon shall be
substantially in the form of Exhibit A, which is hereby incorporated in and
expressly made a part of this Indenture, and as otherwise provided in this
Article II. Any Exchange Series A Notes and Private Exchange Series A Notes
and the Trustee's certificate of authentication thereon shall be substantially
in the form of Exhibit B, which is incorporated in and expressly made a part of
this Indenture, and as otherwise provided in this Article II. The Series A
Notes may have notations, legends or endorsements required by law, stock
exchange rule, agreements to which any Issuer is subject, if any, or usage
(provided that any such notation, legend or endorsement is in a form acceptable
to the Note Issuers). Each Series A Note shall be dated the date of its
authentication. The terms of the Series A Notes set forth in Exhibit A and B
hereto are part of the terms of this Indenture. The Series A Notes shall be
issuable only in registered form without coupons and only in denominations of
$1,000 and any integral multiple of thereof. The Initial Series A Notes are
being offered and sold by the Note Issuers pursuant to the Purchase Agreement.
(b) Initial Series A Notes offered and sold to "qualified
institutional buyers" (as defined in Rule 144A under the Securities Act)
("QIBs") in accordance with Rule 144A under the Securities Act (such rule or
any successor provision thereto, "Rule 144A") as provided in the Purchase
Agreement, shall be issued on the Issue Date initially in the form of one or
more permanent global Series A Notes in registered form, substantially in the
form set forth in Exhibit A hereto (the "Rule 144A Global Series A Notes"),
deposited with the Trustee, as custodian for the Depositary, duly executed by
the Issuers and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of any Rule 144A Global Series A Note may from time
to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
(c) Initial Series A Notes offered and sold in offshore
transactions in reliance on Regulation S as provided in the Purchase Agreement,
shall be issued initially on the Issue Date in the form of one or more
temporary global Series A Notes in registered form, substantially in the forms
set forth in Exhibit A hereto (the "Regulation S Temporary Global Series A
Notes"). The Regulation S Temporary Global Series A Notes shall be registered
in the name of, and held by, a temporary certificate holder designated by Chase
Securities Inc. until the 40th day after the later of the commencement of the
distribution of the Initial Series A Notes and the Issue Date (the "Regulation
S Restricted Period") with respect to the offer and sale of the Initial Series
A Notes (the "Regulation S Series A Notes Exchange Date"). Iridium shall
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promptly notify the Trustee in writing of the occurrence of the Regulation S
Series A Notes Exchange Date and, within a reasonable time after the Regulation
S Series A Notes Exchange Date, upon receipt by the Trustee and Iridium of one
or more certificates substantially in the form set forth in Exhibit C hereto
from one or more Holders of interests in the applicable Regulation S Temporary
Global Series A Notes, the Issuers shall execute, if not already executed, and
the Trustee shall authenticate and deliver, if not already authenticated and
delivered, one or more permanent global Series A Notes in registered form,
substantially in the form set forth in Exhibit A hereto (the "Regulation S
Permanent Global Series A Notes", and together with the related Regulation S
Temporary Global Series A Notes, the "Regulation S Global Series A Notes"), or
increase the beneficial ownership interest therein if already executed,
authenticated and delivered, in exchange for the Regulation S Temporary Global
Series A Notes of like tenor and amount. The Regulation S Global Series A Note
and Rule 144A Global Series A Note are referred to herein as the "Global Series
A Notes." Notwithstanding the foregoing, the Issuers may execute, and the
Trustee may authenticate and deliver Regulation S Permanent Global Series A
Notes in $0 aggregate principal amount at the time of issuance of the
Regulation S Temporary Global Series A Notes.
SECTION 2.02. Execution and Authentication. An Officer shall
sign the Series A Notes for each of the Note Issuers by manual or facsimile
signature. Any reference herein to the execution of a Series A Note by a
Subsidiary Guarantor shall be interpreted as a reference to the endorsement by
such Subsidiary Guarantor of its Subsidiary Guaranty with respect thereto.
If an Officer whose signature is on a Series A Note no longer
holds that office at the time the Trustee authenticates such Series A Note,
such Series A Note shall be valid nevertheless.
A Series A Note shall not be valid until an authorized
signatory of the Trustee manually signs the certificate of authentication on
the Series A Note. The signature shall be conclusive evidence that the Series
A Note has been authenticated under this Indenture.
The Trustee shall authenticate and deliver (1) Initial Series
A Notes for original issue in an aggregate principal amount of up to
$300,000,000 and (2) Exchange Series A Notes for issue only in a Registered
Exchange Offer and Private Exchange Series A Notes only in a Private Exchange,
each pursuant to the Exchange and Registration Rights Agreement, for a like
principal amount of Initial Series A Notes exchanged pursuant thereto, in each
case upon a written order of the Note Issuers signed by an Officer of each Note
Issuer. Such order shall specify the amount of the Series A Notes to be
authenticated, the date on which the original issue of Series A Notes is to be
authenticated and whether the Series A Notes are to be Initial Series A Notes,
Exchange Series A Notes or Private Exchange Series A Notes. The aggregate
principal amount of Series A Notes outstanding at any time may not exceed
$300,000,000 except as provided in Section 2.07.
The Trustee may appoint an authenticating agent reasonably
acceptable to Iridium to authenticate the Series A Notes. Any such appointment
shall be evidenced by an instrument
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signed by an authorized officer of the Trustee, a copy of which shall be
furnished to Iridium. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Series A Notes whenever the Trustee may
do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same
rights as any Registrar, Paying Agent or agent for service of notices and
demands.
Upon execution and delivery of the Indenture, the Initial
Series A Notes shall be endorsed by each of the Initial Guarantors to evidence
their Guaranties of the obligations thereunder.
The Issuers, the Trustee and any agent of the Issuers or the
Trustee may treat the person in whose name any Series A Note is registered as
the owner of such Series A Note for the purpose of receiving payment of
principal of and (subject to the provisions of this Indenture and the Series A
Notes with respect to record dates) interest on such Series A Note and for all
other purposes whatsoever, whether or not such Series A Note is overdue, and
neither the Issuers, the Trustee nor any agent of the Issuers or the Trustee
shall be affected by notice to the contrary.
SECTION 2.03. Registrar and Paying Agent. The Note Issuers
shall maintain an office or agency in the Borough of Manhattan, City of New
York where Series A Notes may be presented for registration of transfer or for
exchange (the "Registrar") and an office or agency where Series A Notes may be
presented for payment (the "Paying Agent"). The Registrar shall keep a
register of the Series A Notes and of their transfer and exchange. The Note
Issuers may have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
The Note Issuers shall enter into an appropriate agency
agreement with any Registrar, Paying Agent or co-registrar not a party to this
Indenture, which shall incorporate the applicable terms of the TIA. The
agreement shall implement the provisions of this Indenture that relate to such
agent. The Note Issuers shall notify the Trustee in writing of the name and
address of any such agent. If the Note Issuers fail to maintain a Registrar or
Paying Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation and indemnity therefor pursuant to Section 7.07. The
Note Issuers or any of their domestically incorporated Wholly-Owned Restricted
Subsidiaries may act as Paying Agent, Registrar, co-registrar or transfer
agent.
The Note Issuers initially appoint the Trustee as Registrar
and Paying Agent in connection with the Series A Notes. The office of the
Registrar and Paying Agent for purposes of this Section 2.03 shall be at 61
Broadway, Concourse Level, New York, New York 10006.
The Note Issuers initially appoint The Depository Trust
Company to act as Depositary with respect to the Global Series A Notes.
Iridium may remove any Registrar or Paying Agent upon written
notice to such Registrar or Paying Agent and to the Trustee; provided that no
such removal shall become effective until (1) acceptance of an appointment by a
successor as evidenced by an appropriate
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agreement entered into by the Note Issuers and such successor Registrar or
Paying Agent, as the case may be, and delivered to the Trustee or (2)
notification to the Trustee that the Trustee shall serve as Registrar or Paying
Agent until the appointment of a successor in accordance with clause (1) above.
The Registrar or Paying Agent may resign at any time upon written notice;
provided, however, that the Trustee may resign as Paying Agent or Registrar
only if the Trustee also resigns as Trustee in accordance with Section 7.08.
SECTION 2.04. Paying Agent To Hold Money in Trust. Prior to
each due date of the principal and interest on any Series A Note, the Note
Issuers shall deposit with the Paying Agent (or if a Note Issuer or a
domestically organized Wholly-Owned Restricted Subsidiary is acting as Paying
Agent, segregate and hold in trust for the benefit of the Persons entitled
thereto) a sum sufficient to pay such principal and interest when so becoming
due. The Note Issuers shall require each Paying Agent (other than the Trustee)
to agree in writing that the Paying Agent shall hold in trust for the benefit
of Holders or the Trustee all money held by the Paying Agent for the payment of
principal of or interest on the Series A Notes and shall notify the Trustee of
any default by the Note Issuers in making any such payment, if a Note Issuer or
a domestically organized Wholly-Owned Restricted Subsidiary acts as Paying
Agent, it shall segregate the money held by it as Paying Agent and hold it as a
separate trust fund. The Note Issuers at any time may require a Paying Agent
to pay all money held by it to the Trustee and to account for any funds
disbursed by the Paying Agent. Upon complying with this Section, the Paying
Agent shall have no further liability for the money delivered to the Trustee.
Any money deposited with any Paying Agent, or then held by a
Note Issuer or a domestically organized Wholly-Owned Restricted Subsidiary in
trust for the payment of principal or interest on any Series A Note and
remaining unclaimed for two years after such principal and interest has become
due and payable shall, subject to the requirements of applicable escheat laws,
be paid to Iridium at its request, or, if then held by a Note Issuer or such a
Subsidiary, shall be discharged from such trust; and the Holders shall
thereafter, as unsecured general creditors, look only to the Note Issuers for
payment thereof, and all liability of the Paying Agent with respect to such
money shall thereupon cease.
SECTION 2.05. Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to
it of the names and addresses of Holders. If the Trustee is not the Registrar,
Iridium shall furnish, or cause the Registrar to furnish, to the Trustee, in
writing at least five Business Days before each interest payment date and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and
addresses of Holders.
SECTION 2.06. Transfer and Exchange. The Series A Notes
shall be issued in registered form and shall be transferable only upon the
surrender of a Series A Note for registration of transfer. When a Series A
Note is presented to the Registrar or a co-registrar with a request to register
a transfer, the Registrar shall register the transfer as requested if the
requirements of Section 8-401(l) of the Uniform Commercial Code are met, as
stated to the Registrar in an opinion of counsel if requested by the Registrar.
When Series A Notes are
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presented to the Registrar or a co-registrar with a request to exchange them
for an equal principal amount of Series A Notes of other denominations, the
Registrar shall make the exchange as requested if the same requirements are
met. To permit registration of transfers and exchanges, the Issuers shall
execute and the Trustee shall authenticate Series A Notes at the Registrar's or
co-registrar's request. The Note Issuers may require payment of a sum
sufficient to pay all taxes, assessments or other governmental charges in
connection with any transfer or exchange pursuant to this Section. The Note
Issuers shall not be required to make and the Registrar need not register
transfers or exchanges of Series A Notes selected for redemption (except, in
the case of Series A Notes to be redeemed in part, the portion thereof not to
be redeemed) or any Series A Notes for a period of 15 days before a selection
of Series A Notes to be redeemed or 15 days before an Interest Payment Date.
Prior to the due presentation for registration of transfer of
any Series A Note, the Issuers, the Trustee, the Paying Agent, the Registrar or
any co-registrar may deem and treat the Person in whose name a Series A Note is
registered as the absolute owner of such Series A Note for the purpose of
receiving payment of principal of and interest, if any, on such Series A Note
and for all other purposes whatsoever, whether or not such Series A Note is
overdue, and none of the Issuers, the Trustee, the Paying Agent, the Registrar
or any co-registrar shall be affected by notice to the contrary.
Any Holder of a Global Series A Note shall, by acceptance of
such Global Series A Note, agree that transfers of beneficial interest in such
Global Series A Note may be effected only through a book-entry system
maintained by the Holder of such Global Series A Note (or its agent), and that
ownership of a beneficial interest in such Global Series A Note shall be
required to be reflected in a book entry.
All Series A Notes issued upon any transfer or exchange
pursuant to this Section 2.06 shall evidence the same debt and shall be
entitled to the same benefits under this Indenture as the Series A Notes
surrendered upon such transfer or exchange.
During the period beginning on the later of the Issue Date and
the last date on which any of the Issuers or any Affiliate of the Issuers was
the owner of an Initial Series A Note (or any predecessor Series A Note) and
ending on the date two years (or such shorter period of time as permitted by
Rule 144(k) under the Securities Act or any successor provision thereunder)
from any such date, any Initial Series A Note issued or owned during the period
set forth above, as the case may be, and any Series A Note issued upon
registration of transfer of, or in exchange for, or in lieu of, such Initial
Series A Note, shall be deemed a "Transfer Restricted Security" and shall be
subject to the restrictions on transfer provided in the Private Placement
Legend; provided, however, that the term "Transfer Restricted Security" shall
not include (a) any Initial Series A Note which is issued upon transfer of, or
in exchange for, any Series A Note which is not a Transfer Restricted Security
or (b) any Initial Series A Note as to which such restrictions on transfer have
been terminated in accordance with this Section 2.06. Any Transfer Restricted
Security shall bear the Private Placement Legend.
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Every Transfer Restricted Security shall be subject to the
restrictions on transfer set forth in Section 2.01 and Section 2.14 and shall
bear the Private Placement Legend and the Holder of each Transfer Restricted
Security or Holder of a beneficial interest therein, by such Holder's or
holder's acceptance thereof, agrees to be bound by such restrictions on
transfer.
The restrictions imposed by Section 2.01 and Section 2.14 upon
the transferability of any particular Transfer Restricted Security shall cease
and terminate and the Private Placement Legend shall no longer be necessary (a)
in the case of a Regulation S Global Series A Note, on the Regulation S Series
A Note Exchange Date or (b) in the case of a Rule 144A Global Series A Note or
Definitive Series A Note, on (x) the later of two years (or such shorter period
of time as permitted by Rule 144(k) under the Securities Act or any successor
provision thereunder) after the later of the Issue Date or the last date on
which any Issuer or any Affiliate of any Issuer was the owner of such Transfer
Restricted Security (or any predecessor of such Transfer Restricted Security)
or (y) (if earlier) if and when such Transfer Restricted Security has been sold
pursuant to an effective registration statement under the Securities Act or,
unless the Holder thereof is an Affiliate of any Issuer, transferred pursuant
to Rule 144 or Rule 904 under the Securities Act (or any successor provision).
Iridium shall inform the Registrar in writing of the effective date of any
registration statement registering any Transfer Restricted Securities under the
Securities Act.
SECTION 2.07. Replacement Series A Notes. If a mutilated
Series A Note is surrendered to the Registrar or if the Holder of a Series A
Note claims that the Series A Note has been lost, destroyed or wrongfully
taken, the Note Issuers shall issue, the Guarantor Subsidiaries shall execute
and the Trustee shall authenticate a replacement Series A Note if the
requirements of Section 8-405 of the Uniform Commercial Code are met, such that
the Holder (i) satisfies Iridium or the Trustee within a reasonable time after
he has notice of such loss, destruction or wrongful taking and the Registrar
does not register a transfer prior to receiving such notification that such
requirements are met, (ii) makes such request to Iridium or the Trustee prior
to the Series A Note being acquired by a bona fide purchaser and (iii)
satisfies any other reasonable requirements of the Trustee including, if
requested, an opinion of counsel for the Holder to the effect that the Holder
has complied with the requirements of this Section 2.07. If required by the
Trustee or Iridium, such Holder shall furnish an indemnity bond sufficient in
the judgment of the Trustee or Iridium, as the case may be, to protect the
Issuers, the Trustee, the Paying Agent, the Registrar and any co-registrar from
any loss that any of them may suffer if a Series A Note is replaced. Iridium
and the Trustee may charge the Holder for their expenses in replacing a Series
A Note. In the event any such mutilated, lost, destroyed or wrongfully taken
Series A Note has become or is about to become due and payable, the Issuers in
its discretion may pay such Series A Note instead of issuing a new Series A
Note in replacement thereof.
Every replacement Series A Note is an additional obligation of
the Issuers.
The provisions of this Section 2.07 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, lost, destroyed or wrongfully taken
Series A Notes.
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SECTION 2.08. Outstanding Series A Notes. Series A Notes
outstanding at any time are all Senior Notes authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation and
those described in this Section as not outstanding. A Series A Note does not
cease to be outstanding because an Issuer or an Affiliate of an Issuer holds
the Series A Note.
If a Series A Note is replaced pursuant to Section 2.07, it
ceases to be outstanding unless the Trustee and Iridium receive proof
satisfactory to them that the replaced Series A Note is held by a bona fide
purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal and interest payable on that date with respect
to the Series A Notes (or portions thereof) to be redeemed or maturing, as the
case may be, and the Paying Agent is not prohibited from paying such money to
the Holders on that date pursuant to the terms of this Indenture, then on and
after that date such Series A Notes (or portions thereof) cease to be
outstanding and interest on them ceases to accrue.
In determining whether the Holders of the required principal
amount of Series A Notes have concurred in any direction, waiver or consent,
Series A Notes owned by the Issuers or any of its Affiliates shall be
disregarded, except that, for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Series A Notes which the Trustee knows or has reason to know are so owned shall
be disregarded.
SECTION 2.09. Temporary Series A Notes. Until Definitive
Series A Notes and Global Series A Notes are ready for delivery, the Issuers
may prepare and the Trustee shall authenticate temporary Series A Notes.
Temporary Series A Notes shall be substantially in the form of Definitive
Series A Notes but may have variations that Iridium considers appropriate for
temporary Series A Notes. Without unreasonable delay, the Issuers shall
prepare and the Trustee shall authenticate Definitive Series A Notes and
deliver them in exchange for temporary Series A Notes upon surrender of such
temporary Series A Notes at the office or agency of the Note Issuers, without
charge to the Holder.
SECTION 2.10. Cancellation. A Note Issuer at any time may
deliver Series A Notes to the Trustee for cancellation. The Registrar and the
Paying Agent shall forward to the Trustee any Series A Notes surrendered to
them for registration of transfer, exchange or payment. The Trustee and no one
else shall cancel and destroy (subject to the record retention requirements of
the Exchange Act) all Series A Notes surrendered for registration of transfer,
exchange, payment or cancellation unless Iridium directs the Trustee to deliver
canceled Series A Notes to Iridium. The Issuers may not issue new Series A
Notes to replace Series A Notes they have redeemed, paid or delivered to the
Trustee for cancellation. The Trustee shall not authenticate Series A Notes in
place of canceled Series A Notes other than pursuant to the terms of this
Indenture.
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SECTION 2.11. Defaulted Interest. If the Issuers default in
a payment of interest on the Series A Notes, the Issuers shall pay the
defaulted interest (plus interest on such defaulted interest to the extent
lawful) in any lawful manner. The Issuers may pay the defaulted interest to
the persons who are Holders on a subsequent special record date. The Note
Issuers shall fix or cause to be fixed any such special record date and payment
date to the reasonable satisfaction of the Trustee and shall promptly mail or
cause to be mailed to each Holder a notice that states the special record date,
the payment date and the amount of defaulted interest to be paid.
The Issuers may make payment of any defaulted interest in any
other lawful manner not inconsistent with the requirements (if applicable) of
any securities exchange on which the Series A Notes may be listed, and upon
such notice as may be required by such exchange, if, after notice given by the
Note Issuers to the Trustee of the proposed payment pursuant to this paragraph,
such manner of payment shall be deemed practicable by the Trustee.
SECTION 2.12. CUSIP Numbers. The Note Issuers in issuing the
Series A Notes may use "CUSIP" numbers (if then generally in use) and, if so,
the Trustee shall use "CUSIP" numbers in notices of redemption as a convenience
to Holders, provided, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Series A Notes or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Series A Notes, and any such redemption shall not be affected by any defect in
or omission of such numbers.
SECTION 2.13. Book-Entry Provisions for Global Series A
Notes.
(a) Each Global Series A Note initially shall (i) be
registered in the name of the Depositary for such Global Series A Note or the
nominee of such Depositary and (ii) be delivered to the Trustee as custodian
for such Depositary and (iii) bear the Global Securities legend as set forth in
Exhibits A and B hereto.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Series A Note held on their behalf by the Depositary, or the Trustee as its
custodian, or under such Global Series A Note, and the Depositary may be
treated by the Issuers, the Trustee and any agent of the Issuers or the Trustee
as the absolute owner of such Global Series A Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Issuers, the
Trustee or any agent of the Issuers or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or shall impair, as between the Depositary and its Agent Members, the operation
of customary practices governing the exercise of the rights of a Holder of any
Series A Note.
(b) Transfers of a Global Series A Note shall be limited
to transfers of such Global Series A Note in whole, but not in part, to the
Depositary, its successors or their respective nominees. Interests of
beneficial owners in a Global Series A Note may be transferred in accordance
with the rules and procedures of the Depositary and the provisions of Section
2.14.
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Except as otherwise provided in Section 2.14, beneficial owners of interests in
a Global Series A Note may obtain Definitive Series A Notes in exchange for
their beneficial interests in a Global Series A Note only if (i) the Note
Issuers notify the Trustee in writing that the Depositary is no longer willing
or able to act as Depositary for such Global Series A Note or the Depositary
ceases to be a "clearing agency" registered under the Exchange Act, at a time
when the Depositary is required to be so registered in order to act as
Depositary, and, in each case, a successor depositary is not appointed by the
Note Issuers within 90 days of such notice, (ii) the Note Issuers, at their
option, notify the Trustee in writing that they elect to cause the issuance of
Definitive Series A Notes or (iii) an Event of Default has occurred and is
continuing and the Registrar has received a request from the Depositary to
effect such exchange.
(c) In connection with any transfer of a portion of the
beneficial interest in a Global Series A Note pursuant to Section 2.13(b) or
Section 2.14, the Registrar shall reflect on its books and records the date and
a decrease in the principal amount of such Global Series A Note in an amount
equal to the principal amount of the beneficial interest in the Global Series A
Note to be transferred, and the Issuers shall execute, and the Trustee shall
authenticate and deliver, one or more Definitive Series A Notes of like tenor
and amount.
(d) Any beneficial interest in one of the Global Series A
Notes that is transferred to a person who takes delivery in the form of an
interest in the other corresponding Global Series A Note will, upon transfer,
cease to be an interest in such Series A Note and become an interest in the
other corresponding Series A Note and, accordingly, will thereafter be subject
to all transfer restrictions, if any, and other procedures applicable to
beneficial interest in such other corresponding Series A Note for as long as it
remains such an interest.
(e) In connection with the transfer of an entire Global
Series A Note to beneficial owners pursuant to subsection (b) of this Section,
such Global Series A Note shall be deemed to be surrendered to the Trustee for
cancellation, and the Issuers shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depositary in exchange
for its beneficial interest in such Global Series A Note, an equal aggregate
principal amount of Definitive Series A Notes of authorized denominations.
(f) Any Definitive Series A Note delivered in exchange
for an interest in a Global Series A Note pursuant to subsection (b) or
subsection (e) of this Section shall, unless the circumstances provided in
Section 2.14(a)(i)(x) exist or except as otherwise provided in Section 2.14(e),
bear the applicable legend regarding transfer restrictions applicable to the
Definitive Series A Note set forth in Exhibit A.
(g) The registered holder of a Global Series A Note may
grant proxies and otherwise authorize any person, including Agent Members and
persons that may hold interests through Agent Members, to take any action which
a Holder is entitled to take under this Indenture or the Series A Notes.
SECTION 2.14. Special Transfer Provisions.
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Unless and until an Initial Series A Note or an interest
therein is transferred or exchanged under an effective registration statement
under the Securities Act, the following provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited
Investors. The following provisions shall apply with respect to the
registration of any proposed transfer of an interest in a Transfer Restricted
Security to any IAI which is not a QIB (excluding Non-U.S. Persons) that is
consistent with the Private Placement Legend:
(i) The Registrar shall register the transfer of any
Series A Note, whether or not such Series A Note bears the Private
Placement Legend, if (x) the requested transfer is at least two years
after the later of the Issue Date and the last date on which any of
Issuers or an Affiliate of the Issuers was the owner of such Series A
Note or (y) the proposed transferee has delivered to the Registrar a
certificate substantially in the form set forth in Exhibit D hereto.
(ii) If the proposed transferor is an Agent Member
holding a beneficial interest in a Rule 144A Global Series A Note
seeking to transfer a Definitive Series A Note to another Person, upon
receipt by the Registrar of (x) the documents, if any, required by
paragraph (i) and (y) instructions given in accordance with the
Depositary's and the Registrar's procedures therefor, the Registrar
shall reflect on its books and records the date and a decrease in the
principal amount of such Rule 144A Global Series A Note in an amount
equal to the principal amount of the beneficial interest in such Rule
144A Global Series A Note to be transferred, and the Issuers shall
execute, and the Trustee shall authenticate and deliver, one or more
Definitive Series A Notes of like tenor and amount.
(iii) An IAI which is not a QIB and not a Non-U.S.
Person shall only hold Definitive Series A Notes.
(b) Transfers to QIBs. The following provisions shall
apply with respect to the registration of any proposed transfer of an Initial
Series A Note to a QIB (other than a Non-U.S. Person):
(i) If the Series A Note to be transferred consists
of (x) Definitive Series A Notes, the Registrar shall register the
transfer if such transfer is being made by a proposed transferor who
has delivered to the Trustee a certificate substantially in the form
set forth in Exhibit E hereto or (y) an interest in the Rule 144A
Global Series A Note, the transfer of such interest may be effected
only through the book entry system maintained by the Depository.
(ii) If the Series A Note to be transferred consists
of Definitive Series A Notes, upon receipt by the Trustee of
instructions given in accordance with the Depositary's and the
Registrar's procedures therefor, the Registrar shall reflect on its
books and records the date and an increase in the principal amount of
the Rule 144A
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Global Series A Note in an amount equal to the principal amount of the
Definitive Note, to be transferred, and the Trustee shall cancel the
Definitive Series A Note so transferred.
(c) Transfers of Interests in the Regulation S Global
Series A Note to U.S. Persons. The following provisions shall apply with
respect to any transfer of an interest in the Regulation S Global Series A Note
to U.S. Persons:
(i) If the beneficial interest to be transferred is
in a Regulation S Temporary Global Series A Note, transfers by an
owner of a beneficial interest in such Regulation S Global Series A
Note to a transferee who takes delivery of such interest through the
corresponding Rule 144A Global Series A Note will be made only upon
the receipt by the Trustee from the transferor of a certificate
substantially in the form of Exhibit E hereto to the effect that such
transfer is being made to a Person whom the transferor reasonably
believes is a QIB within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A.
(ii) If the beneficial interest to be transferred is
in a Regulation S Permanent Global Series A Note, the Registrar shall
register the transfer of any such Series A Note without requiring any
additional certification.
(d) Transfers to Non-U.S. Persons at Any Time. The
following provisions shall apply with respect to any transfer of an interest in
a Series A Note to a Non-U.S. Person:
(i) The Registrar shall register any proposed
transfer to any Non-U.S. Person if the Series A Note to be transferred
is a Definitive Series A Note or an interest in a Rule 144A Global
Series A Note only upon receipt of a certificate substantially in the
form set forth in Exhibit F hereto from the proposed transferor.
Prior to the termination of the Regulation S Restricted Period, any
Non-U.S. person shall be delivered a beneficial interest in the
corresponding Regulation S Temporary Global Series A Note.
(ii) (x) If the proposed transferor is an Agent
Member holding a beneficial interest in the Rule 144A Global Series A
Note, upon receipt by the Registrar of (1) the documents required by
paragraph (i) of this paragraph (d) and (2) instructions in accordance
with the Depositary's and the Registrar's procedures, the Registrar
shall reflect on its books and records the date and a decrease in the
principal amount of such Rule 144A Global Series A Note in an amount
equal to the principal amount of the beneficial interest in such Rule
144A Global Series A Note to be transferred and (y) upon receipt by
the Registrar of instructions given in accordance with the
Depositary's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and an increase in the
principal amount of the corresponding Regulation S Global Series A
Note in an amount equal to the principal amount of the Definitive
Series A Note or such Rule 144A Global Series A Note, as the case may
be, to be transferred, and the Registrar shall cancel
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the Definitive Series A Note so transferred or decrease the principal
amount of such Rule 144A Global Series A Note, as the case may be.
(e) Private Placement Legend. Upon the transfer,
exchange or replacement of Series A Notes not bearing the Private Placement
Legend, the Registrar shall deliver Series A Notes that do not bear the Private
Placement Legend. Upon the transfer, exchange or replacement of Series A Notes
bearing the Private Placement Legend, the Registrar shall deliver only Series A
Notes that bear the Private Placement Legend unless either (i) the Private
Placement Legend is no longer required pursuant to Section 2.01 and Section
2.06 or (ii) there is delivered to the Registrar an Opinion of Counsel
reasonably satisfactory to the Issuers and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act.
(f) General. By its acceptance of any Series A Note, or any
beneficial interest in any Global Series A Note, bearing the Private Placement
Legend, each Holder of such Series A Note or holder of such beneficial interest
acknowledges the restrictions on transfer of such Series A Note set forth in
this Indenture and in the Private Placement Legend and agrees that it will
transfer such Series A Note only as provided in this Indenture. The Registrar
shall not register a transfer of any Series A Note unless such transfer
complies with the restrictions on transfer of such Series A Note set forth in
this Indenture. In connection with any transfer of Series A Notes to an IAI,
each such Holder or beneficial owner agrees by its acceptance of the Series A
Notes to furnish the Registrar or the Note Issuers such certifications, legal
opinions or other information as such Person may reasonably require to confirm
that such transfer is being made pursuant to an exemption from, or a
transaction not subject to, the registration requirements of the Securities
Act; provided, that the Registrar shall not be required to determine (but may
rely on a determination made by the Note Issuers with respect to) the
sufficiency of any such certifications, legal opinions or other information.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.13 or this Section
2.14. The Issuers shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon
the giving of reasonable written notice to the Registrar.
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee. If either Note Issuer
elects to redeem Series A Notes pursuant to Section 3.07, it shall notify the
Trustee in writing of the redemption date and the principal amount of Series A
Notes to be redeemed.
The Note Issuer shall give each notice to the Trustee provided
for in this Section at least 30 days before the redemption date unless the
Trustee consents to a shorter period. Such
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notice shall be accompanied by an Officers' Certificate from the Note Issuer to
the effect that such redemption shall comply with the conditions herein. If
fewer than all the Series A Notes are to be redeemed, the record date relating
to such redemption shall be selected by Iridium and given to the Trustee, which
record date shall be not less than 15 days after the date of notice to the
Trustee (unless a shorter period shall be acceptable to the Trustee). Any such
notice may be canceled by notice in writing to the Trustee at any time prior to
notice of such redemption being mailed to any Holder and shall thereby be void
and of no effect.
SECTION 3.02. Selection of Securities to be Redeemed. If
fewer than all the Series A Notes are to be redeemed, the Trustee shall select
the Series A Notes to be redeemed pro rata or by lot or by such other method as
the Trustee in its sole discretion deems to be fair and appropriate. The
Trustee shall make the selection from outstanding Series A Notes not previously
called for redemption. The Trustee may select for redemption portions of the
principal of Series A Notes that have denominations larger than $1,000 .
Securities and portions of them the Trustee selects shall be in amounts of
$1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply
to Series A Notes called for redemption also apply to portions of Series A
Notes called for redemption. The Trustee shall notify the Note Issuers
promptly of the Series A Notes or portions of Series A Notes to be redeemed.
SECTION 3.03. Notice of Redemption. Any notice of redemption
shall identify the Series A Notes to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Series A Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Series A Notes are
to be redeemed, the certificate numbers and principal amounts of the
particular Series A Notes to be redeemed;
(6) that, unless the Note Issuers default in making such
redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture, interest on Series A
Notes (or portion thereof) called for redemption ceases to accrue on
and after the redemption date;
(7) the CUSIP number, if any, printed on the Series A
Notes being redeemed;
(8) that no representation is made as to the correctness
or accuracy of the CUSIP number, if any, listed in such notice or
printed on the Series A Notes; and
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(9) that if a Series A Note is to be redeemed in part,
only the portion of the principal amount (equal to $1,000 or an
integral multiple thereof) of such Series A Note to be redeemed and
that a new Series A Note in the aggregate principal amount equal to
the unredeemed portion thereof shall be issued without charge to the
holder.
At either Note Issuer's request (which may be revoked at any
time in writing prior to the time at which the Trustee shall have given such
notice to the Holders), the Trustee shall give the notice of redemption in the
applicable Note Issuer's name and at the Note Issuer's expense. In such event,
the Note Issuer shall provide the Trustee with the information required by this
Section.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Series A Notes called for redemption become due and
payable on the redemption date and at the redemption price stated in the
notice. Upon surrender to the Paying Agent, such Series A Notes shall be paid
at the redemption price stated in the notice, plus accrued interest, if any, to
the redemption date; provided that if the redemption date is after a regular
record date and on or prior to the interest payment date, the accrued interest
shall be payable to the Holder of the redeemed Series A Notes registered on the
relevant record date. If mailed in the manner provided herein, the notice
shall be conclusively presumed to have been given whether or not the Holder
receives such notice. Failure to give notice or any defect in the notice to
any Holder shall not affect the validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price. At least one
Business Day prior to the redemption date, the applicable Note Issuer shall
deposit with the Paying Agent (or, if a Note Issuer or a Subsidiary is the
Paying Agent, shall segregate and hold in trust) money sufficient to pay the
redemption price of and accrued interest on all Series A Notes to be redeemed
on that date other than Series A Notes or portions of Series A Notes called for
redemption which have been delivered by such Note Issuer to the Trustee for
cancellation.
SECTION 3.06. Series A Notes Redeemed in Part. Upon
surrender of a Series A Note that is redeemed in part, the Issuers shall
execute and the Trustee shall authenticate for the Holder (at the Note Issuers'
expense) a new Series A Note equal in principal amount to the unredeemed
portion of the Series A Note surrendered.
SECTION 3.07. Optional Redemption. (a) Except as set forth in
Section 3.07(b), the Series A Notes may not be redeemed prior to July 15, 2002.
On and after that date, either Note Issuer may redeem the Series A Notes in
whole or in part at the following redemption prices (expressed in percentages
of principal amount), plus accrued and unpaid interest and Liquidated Damages,
if any, to the redemption date (subject to the right of Holders of record on
the relevant record date to receive interest due on the relevant interest
payment date that is on or prior to the date of redemption), if redeemed during
the 12-month period commencing on July 15 of the years set forth below:
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Redemption
Period Price
- ------ ----------
July 15, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106.750%
July 15, 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103.375%
July 15, 2004 and thereafter . . . . . . . . . . . . . . . . . . . . . . . . . . . 100.00%
(b) In addition, at any time on or prior to July 15,
2000, either Note Issuer may redeem in the aggregate up to 33-1/3% of the
original aggregate principal amount of Series A Notes with the proceeds of one
or more Equity Offerings at a redemption price (expressed as a percentage of
principal amount thereof) of 113.5% plus accrued and unpaid interest and
Liquidated Damages, if any, to the redemption date (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date that is on or prior to the date of redemption);
provided, however, that at least 66-2/3% of the original aggregate principal
amount of the Series A Notes being redeemed must remain outstanding after each
such redemption.
ARTICLE IV
Covenants
SECTION 4.01. Payment of Series A Notes. The Note Issuers,
as joint and several obligors, shall promptly pay the principal of and interest
and Liquidated Damages, if any, on the Series A Notes on the dates and in the
manner provided in the Series A Notes and in this Indenture. Principal,
interest and Liquidated Damages, if any, shall be considered paid on the date
due if on such date the Trustee or the Paying Agent holds in accordance with
this Indenture money sufficient to timely pay all principal, interest and
Liquidated Damages, if any, then due and the Trustee or the Paying Agent, as
the case may be, and is not prohibited from paying such money to the Holders on
that date pursuant to the terms of this Indenture.
The Note Issuers, as joint and several obligors, shall pay
interest on overdue principal at the rate specified therefor in the Series A
Notes, and shall pay interest on overdue installments of interest and
Liquidated Damages, if any, at the same rate to the extent lawful.
SECTION 4.02. SEC Reports. Notwithstanding that Iridium may
not be required to be or remain subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, Iridium shall file with the SEC, and
provide the Trustees and Holders and prospective Holders (upon request) with
the annual reports and the information, documents and other reports which are
specified in Sections 13 and 15(d) of the Exchange Act.
In addition, for so long as any Series A Notes remain
outstanding, unless the Note Issuers are subject to Section 13 or 15(d) of the
Exchange Act, Iridium shall furnish to the
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Holders and to prospective investors in the Series A Notes, upon their request,
the information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
The foregoing shall not require Capital or any Guarantor
Subsidiary to file, provide or furnish with or to any Person any report or
information separate from any report or information filed, provided or
furnished by Iridium to the extent Capital or any Guarantor Subsidiary would
not be required to do so under Section 13 or 15(d) of the Exchange Act or
pursuant to Rule 144A(d)(4) under the Securities Act.
SECTION 4.03. Limitation on Indebtedness.
(a) Iridium shall not, and shall not permit any Restricted
Subsidiary to, Incur any Indebtedness (including any Acquired Indebtedness)
unless (i) immediately after giving effect to the Incurrence of such
Indebtedness and the receipt and application of the proceeds thereof, the Debt
to Cash Flow Ratio would be less than 4.0 to 1.0 and (ii) if such Indebtedness
is Incurred by a Restricted Subsidiary, such Restricted Subsidiary is a
Guarantor Subsidiary. Notwithstanding the foregoing, prior to June 30, 2000,
Iridium, Capital and any other Restricted Subsidiary that is a Guarantor
Subsidiary may Incur Indebtedness if immediately after giving effect to the
Incurrence of such Indebtedness and the receipt and application of the proceeds
thereof, the Debt to Capital Ratio would be less than 65%.
(b) Notwithstanding the foregoing paragraph (a), Iridium,
Capital and any other Restricted Subsidiary that is a Guarantor Subsidiary may
Incur the following Indebtedness:
(i) Indebtedness Incurred under any one or more Bank Credit
Agreements, Vendor Financing Facilities or other agreements or
arrangements to finance the Build-out of the IRIDIUM System; provided,
however, that Indebtedness Incurred pursuant to this clause (i), other
than Indebtedness Incurred pursuant to a Bank Credit Agreement or
Vendor Financing Facility, shall not have a Stated Maturity earlier
than the Stated Maturity of the Series A Notes, and shall not be
mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or be redeemable at the option of the holder thereof, in
whole or in part, prior to the Stated Maturity of the Series A Notes
(other than pursuant to provisions which are substantially similar to
those contained in Section 4.08 which permit the holders of such
Indebtedness to require the issuer thereof to repurchase or repay such
Indebtedness upon a Change of Control (or an event substantially
similar thereto) or to make an offer to purchase as a result of the
occurrence of an Asset Disposition (or an event substantially similar
thereto) or receipt of insurance proceeds);
(ii) After Commercial Activation, Indebtedness under any one
or more Bank Credit Agreements or other agreements or arrangements to
finance working capital requirements of Iridium and any Refinancing
Indebtedness in respect of such Indebtedness; provided, however, at
the time of the Incurrence of such Indebtedness and after giving
effect thereto, the aggregate principal amount of all Indebtedness
Incurred pursuant to this clause (ii) and then outstanding does not
exceed $950,000,000;
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(iii) Indebtedness Incurred under any one or more Bank Credit
Agreements, Vendor Financing Facilities or other agreements or
arrangements that is guaranteed pursuant to the Motorola Additional
Guarantee; provided, however, at the time of Incurrence of such
Indebtedness and after giving effect thereto, the aggregate principal
amount of all Indebtedness incurred pursuant to this clause (iii) and
then outstanding does not exceed $350,000,000;
(iv) Indebtedness owed by Iridium to Capital or any
Wholly-Owned Restricted Subsidiary that is a Guarantor Subsidiary or
Indebtedness owed by Capital or any Wholly-Owned Restricted Subsidiary
that is a Guarantor Subsidiary to Iridium or to Capital or another
Wholly-Owned Restricted Subsidiary that is a Guarantor Subsidiary;
provided, however, that upon either (x) the transfer or other
disposition by Capital, such Wholly-Owned Restricted Subsidiary or
Iridium of any Indebtedness so permitted to a Person other than
Iridium, Capital or another Wholly-Owned Restricted Subsidiary that is
a Guarantor Subsidiary or (y) the issuance, sale, lease, transfer or
other disposition of shares of Capital Stock (including by
consolidation or merger, but not including directors' qualifying
shares or interests required to be held by foreign nationals, in each
case to the extent mandated by applicable law) of such Wholly-Owned
Restricted Subsidiary or Capital to a Person other than Iridium,
Capital or another such Wholly-Owned Restricted Subsidiary, the
provisions of this clause (iv) shall no longer be applicable to such
Indebtedness and such Indebtedness shall be deemed to have been
Incurred by the issuer thereof at the time of such issuance, sale,
lease, transfer or other disposition;
(v) Refinancing Indebtedness Incurred to Refinance
Indebtedness Incurred pursuant to Section 4.03(a) or pursuant to
clause (i), (ii), (iii), (vii) or (viii) or this clause (v) of this
Section 4.03(b);
(vi) Indebtedness consisting of Permitted Interest Rate or
Currency Protection Agreements;
(vii) Indebtedness represented or evidenced by the Series A
Notes, the Subsidiary Guaranties, the Series B Notes, and Indebtedness
of the Guarantor Subsidiaries evidenced by their Guarantees relating
to the Series B Notes;
(viii) Indebtedness outstanding on the Issue Date (other than
the Guaranteed Bank Facility and other Indebtedness described in
clause (i), (ii), (iii), (iv) or (vii) of this Section 4.03(b));
(ix) Indebtedness consisting of performance and other similar
bonds and reimbursement obligations Incurred in the ordinary course of
business securing the performance of contractual, franchise or license
obligations of Iridium, Capital or a Restricted Subsidiary, or in
respect of a letter of credit obtained to secure such performance; and
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(x) Indebtedness in an aggregate principal amount which,
together with all other Indebtedness of Iridium, Capital and other
Restricted Subsidiaries that are Guarantor Subsidiaries outstanding on
the date of such Incurrence (without duplication and other than
Indebtedness permitted by clauses (i) through (ix) above or Section
4.03(a)) does not exceed $100,000,000.
(c) For purposes of determining compliance with this
covenant, in the event that an item of Indebtedness meets the criteria of more
than one of the types of Indebtedness Iridium, Capital and the other Restricted
Subsidiaries are permitted to Incur, Iridium, Capital or such Restricted
Subsidiary, as the case may be, shall have the right, in Iridium's sole
discretion, to classify such item of Indebtedness at the time of its Incurrence
and shall only be required to include the amount and type of such Indebtedness
under the clause permitting the Indebtedness as so classified.
SECTION 4.04. Limitation on Restricted Payments. (a)
Iridium shall not, and shall not permit any Restricted Subsidiary, directly or
indirectly, to:
(i) declare or pay any dividend or make any distribution on
or in respect of its Capital Stock (including any payment in
connection with any merger or consolidation involving the Note
Issuers), except dividends or distributions payable solely in its
Capital Stock (other than Disqualified Stock) and cash to the extent
required to pay for fractional shares of such Capital Stock or payable
to Iridium or another Restricted Subsidiary (and, if such Restricted
Subsidiary has shareholders other than the Note Issuers or other
Restricted Subsidiaries, to its other shareholders on a pro rata basis
or on a basis that results in the receipt by the Note Issuers or a
Restricted Subsidiary of dividends or distributions of equal or
greater value);
(ii) purchase, redeem, retire or otherwise acquire for value
any Capital Stock of Iridium or any Restricted Subsidiary held by
Persons other than Iridium or another Restricted Subsidiary;
(iii) purchase, repurchase, redeem, defease, acquire or
retire for value, or otherwise make any principal payment on, any
Subordinated Obligations prior to the scheduled maturity, scheduled
repayment or scheduled sinking fund payment thereof (other than the
purchase, repurchase or other acquisition of Subordinated Obligations
purchased in anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case due within one
year of the date of acquisition, or any purchase, repurchase,
redemption or other acquisition or prepayment thereof in connection
with any Refinancing thereof permitted pursuant to clause (v) of
paragraph (b) of Section 4.03; or
(iv) make any Investment (other than a Permitted Investment)
in any Person (any such dividend, distribution, purchase, redemption,
repurchase, defeasance, other acquisition, retirement, Investment or
payment being herein referred to as a "Restricted
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Payment"), if at the time Iridium or such Restricted Subsidiary makes
such Restricted Payment: (1) a Default has occurred and is continuing
(or would result therefrom); (2) Iridium could not Incur at least
$1.00 of additional Indebtedness pursuant to the terms of the first
sentence of paragraph (a) of Section 4.03; or (3) the aggregate amount
of such Restricted Payment and all other Restricted Payments declared
or made subsequent to the Issue Date would exceed the sum of:
(A) 50% of the Consolidated Net Income of Iridium
accrued during the period (treated as one accounting period)
from the beginning of the fiscal quarter immediately following
the fiscal quarter during which the Issue Date occurs to the
end of the most recent fiscal quarter for which internal
financial statements are available at the time of such
Restricted Payment (or, in case such Consolidated Net Income
is a deficit, minus 100% of such deficit); provided, however,
that the aggregate amount calculated pursuant to this clause
(A) (if such aggregate amount is a negative amount) shall be
reset to zero on the first date on which the Series A Notes
are assigned an Investment Grade Rating by both Rating
Agencies;
(B) the aggregate Net Cash Proceeds received by
Iridium from the issuance or sale of its Capital Stock (other
than Disqualified Stock) subsequent to the Issue Date (other
than an issuance or sale to a Restricted Subsidiary and other
than an issuance or sale to an employee stock ownership plan
or to a trust established by Iridium or any Restricted
Subsidiaries for the benefit of their employees);
(C) the amount by which Indebtedness of Iridium is
reduced on the balance sheet of Iridium upon the conversion or
exchange (other than by a Restricted Subsidiary) subsequent to
the Issue Date of any Indebtedness of Iridium convertible or
exchangeable for Capital Stock (other than Disqualified Stock)
of Iridium (less the amount of any cash, or the fair value of
any other property or assets of Iridium or any Restricted
Subsidiary, distributed by Iridium upon such conversion or
exchange); and
(D) an amount equal to the sum of (i) the net
reduction in Investments in Unrestricted Subsidiaries
resulting from dividends, repayments of loans or advances or
other transfers of assets, in each case to Iridium or any
Restricted Subsidiary from Unrestricted Subsidiaries, and (ii)
the portion (proportionate to Iridium's equity interest in
such Subsidiary) of the fair market value of the net assets of
an Unrestricted Subsidiary (as evidenced by a resolution of
the Board of Directors in the manner set forth in Section
4.04(c)) at the time such Unrestricted Subsidiary is
designated a Restricted Subsidiary; provided, however, that
the foregoing sum does not exceed, in the case of any
Unrestricted Subsidiary, the amount of Investments previously
made (and treated as a Restricted Payment) by Iridium or any
Restricted Subsidiary in such Unrestricted Subsidiary.
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(b) Notwithstanding the foregoing, Iridium may
(i) subject to clause (vii) below, pay any dividend on
Capital Stock of any class within 60 days after the declaration
thereof if, on the date when the dividend was declared, Iridium could
have paid such dividend in accordance with the foregoing provisions;
(ii) repurchase any Capital Stock from Persons who were
formerly officers, managers or employees of Iridium or any of its
Subsidiaries (or from IWCL in connection with or relating to a
repurchase by IWCL of its Capital Stock from such Persons), provided,
however, that the aggregate amount of all such repurchases made
pursuant to this clause (ii) shall not exceed $2,000,000, plus the
aggregate cash proceeds received by Iridium since the Issue Date from
the issuance of its Capital Stock to officers, managers and employees
of Iridium or any of its Subsidiaries (or from IWCL in connection with
or relating to such an issuance by IWCL to such Persons);
(iii) Refinance, and permit its Restricted Subsidiaries to
Refinance, any Indebtedness otherwise permitted to be Refinanced by
clause (v) of paragraph (b) under Section 4.03.
(iv) during the period Iridium is treated as a partnership
for U.S. federal income tax purposes and after such period to the
extent relating to the liability for such period, make distributions
in respect of members' or partners' income tax liability with respect
to Iridium (whether directly incurred or indirectly incurred after the
Asset Drop-Down Transaction) in an amount not to exceed the Tax
Amount;
(v) make distributions to IWCL to pay IWCL's ordinary and
reasonable operating expenses related to Iridium, as set forth in an
Officers' Certificate delivered to the Trustee;
(vi) repurchase any Capital Stock pursuant to Section 11.03
of the LLC Agreement in the event a member of Iridium fails to pay any
of the amounts required by a Reserve Capital Call;
(vii) make any Restricted Payment by exchange for, or out of
the proceeds of the substantially concurrent sale of, or capital
contribution in respect of, Capital Stock of Iridium (other than
Disqualified Stock and other than Capital Stock issued or sold to a
Subsidiary of Iridium or an employee stock ownership plan or to a
trust established by Iridium or any of its Subsidiaries for the
benefit of their employees);
(viii) make any Restricted Payment pursuant to the Interest
Exchange Agreement, the Share Issuance Agreement, the Master
Subscription Agreement or the Management Services Agreement; and
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(ix) make other Restricted Payments in an aggregate amount
not to exceed $10,000,000.
Any Restricted Payment made pursuant to clauses (ii), (iii), (iv),
(vii), (viii) and (ix) of the immediately preceding paragraph shall be excluded
from the calculation of the aggregate amount of Restricted Payments made since
the Issue Date; provided, however, that the Net Cash Proceeds from the issuance
of Capital Stock pursuant to clauses (ii) and (vii) of the immediately
preceding paragraph shall be excluded from the calculation of amounts under
clause (B) of the second preceding paragraph. A dividend or distribution by a
Restricted Subsidiary in respect of its Capital Stock shall only be deemed to
be a Restricted Payment to the extent such dividend or distribution is paid to
entities other than Iridium and the Restricted Subsidiaries.
(c) The net proceeds from the issuance of shares of Capital Stock
upon conversion of Indebtedness shall be deemed to be an amount equal to (i)
the accreted value of such Indebtedness on the date of such conversion and (ii)
the additional consideration, if any, received by Iridium upon such conversion
thereof, less any cash payment on account of fractional shares. The amount of
all Restricted Payments (other than cash) shall be the fair market value
(evidenced by a resolution of the Board of Directors determined in good faith
and set forth in an Officers' Certificate delivered to the Trustee) on the date
of the Restricted Payment of the asset(s) proposed to be transferred by Iridium
or such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment. Not later than the date of making any Restricted Payment, Iridium
shall deliver to the Trustee an Officers' Certificate identifying each
Restricted Payment made by Iridium during such fiscal quarter and stating that
such Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.04 were computed, which calculations
may be based upon Iridium's latest available financial statements. If Iridium
makes a Restricted Payment which, at the time of the making of such Restricted
Payment, would in the good faith determination of Iridium be permitted under
this Indenture, such Restricted Payment shall be deemed to have been made in
compliance with this Indenture notwithstanding any subsequent adjustments made
in good faith to Iridium's financial statements affecting Consolidated Net
Income for any period.
SECTION 4.05. Limitation on Restrictions on Distributions
from Restricted Subsidiaries. Iridium shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, create or otherwise cause or
permit to exist or become effective any consensual encumbrance or restriction
on the ability of any Restricted Subsidiary to (i) pay dividends or make any
other distributions to Iridium or any Restricted Subsidiary on its Capital
Stock or with respect to any other interest or participation in, or measured
by, its profits, (ii) pay any Indebtedness owed to Iridium or any Restricted
Subsidiary, (iii) make any loans or advances to Iridium or any Restricted
Subsidiary or (iv) transfer any of its property or assets to Iridium or any
Restricted Subsidiary, except:
(1) any encumbrance or restriction pursuant to an agreement
relating to the Guaranteed Bank Facility or any other agreement in
effect at or entered into on the Issue Date, or any encumbrance or
restriction imposed pursuant to this Indenture or the Series
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A Notes, the Series B Indenture or the Series B Notes (or similar
limitations pursuant to other notes issued by Iridium, or indentures
relating thereto, that are substantially similar to those set forth in
this Indenture), or any agreement relating to the Secured Bank
Facility;
(2) any encumbrance or restriction pursuant to an agreement
relating to any Acquired Indebtedness, which encumbrance or
restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person so acquired and its
Subsidiaries;
(3) any encumbrance or restriction pursuant to (x) an
agreement or instrument pursuant to which Indebtedness which
Refinances Indebtedness Incurred pursuant to an agreement referred to
in clause (1) or (2) or this clause (3) is Incurred or contained in
any amendment to an agreement or instrument referred to in clause (1)
or (2) or this clause (3), or (y) Indebtedness Incurred pursuant to
clause (i), (ii) or (iii) of paragraph (b) of Section 4.03; provided,
however, that the encumbrances and restrictions contained in any such
refinancing agreement, instrument or amendment referred to in clause
(x) above are, taken as a whole, no more restrictive in any material
respect than the encumbrances and restrictions contained in the
predecessor agreements (as determined by the chief financial officer
of Iridium in good faith and evidenced by a certificate filed with the
Trustee);
(4) any encumbrance or restriction contained in security
agreements or mortgages securing Indebtedness, or under any documents
providing for Capital Lease Obligations, of a Restricted Subsidiary
which are not prohibited by Section 4.12 herein to the extent such
encumbrances or restrictions restrict the assignment or transfer of
the property or assets subject to such security agreements or
mortgages, or subject to such Capital Lease Obligations;
(5) any encumbrance or restriction existing under or by
reason of applicable law or regulations;
(6) customary non-assignment provisions of any licensing
agreement or of any lease but only to the extent such provisions
restrict the transfer of the license, lease or the property
thereunder;
(7) any encumbrance or restriction contained in contracts for
sales of assets otherwise permitted by this Indenture;
(8) with respect to a Restricted Subsidiary, any encumbrance
or restriction imposed pursuant to an agreement that has been entered
into for the sale of all or substantially all of the Capital Stock of
such Restricted Subsidiary; provided, however, that after giving
effect to such transaction no Default shall have occurred or be
continuing, that such restriction terminates if such transaction is
not consummated and
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that such consummation or abandonment of such transaction occurs
within one year of the date such agreement was entered into;
(9) any encumbrance or restriction, with respect to a
Restricted Subsidiary that is not a Restricted Subsidiary on the date
of this Indenture, in existence at the time such Person becomes a
Restricted Subsidiary and not incurred in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary; and
(10) any restriction on the sale or other disposition of
assets or property securing Indebtedness as a result of a Permitted
Lien on such assets or property.
SECTION 4.06. Limitation on Sales of Assets and Subsidiary
Stock. (a) Iridium shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, make any Asset Disposition unless:
(i) Iridium or such Restricted Subsidiary, as the case may
be, receives consideration at the time of such Asset Disposition at
least equal to the fair market value (including the value of all
non-cash consideration) of the shares and assets subject to such Asset
Disposition, as determined by the Board of Directors in good faith and
evidenced by a resolution filed with the Trustee;
(ii) at least 80% of the consideration therefor received by
Iridium or such Restricted Subsidiary, as the case may be, consists of
cash or Marketable Securities (provided that an amount equal to the
fair value (as determined in good faith by the Board of Directors as
evidenced by a resolution filed with the Trustee) of assets utilized
or to be utilized in a Related Business and received by Iridium or any
Restricted Subsidiary in connection with any Asset Disposition shall
be treated as cash solely for purposes of this clause (ii)) or the
assumption of Indebtedness of Iridium (other than Indebtedness that is
a Subordinated Obligation) or the Restricted Subsidiary, as the case
may be, and the release of Iridium or such Restricted Subsidiary, as
the case may be, from all liability on the Indebtedness assumed; and
(iii) all Net Available Proceeds, less any amounts invested
within 180 days of such disposition (or committed by such 180th day
for investment pursuant to a written agreement which commits such
investment within 180 days after the date of such agreement) in assets
that comply with Section 4.13, are applied within 180 days of such
Asset Disposition (1) first, to the permanent repayment or reduction
of Indebtedness then outstanding under any Bank Credit Agreement or
Vendor Financing Facility, to the extent such agreement or facility
would require such application or prohibit payments pursuant to the
following clause (2), (2) second, to the extent of remaining Net
Available Proceeds, to make an Offer to Purchase outstanding Series A
Notes at a purchase price in cash equal to 100% of the principal
amount of the Series A Notes plus accrued and unpaid interest and
Liquidated Damages, if any, to the date of purchase and, to the extent
required by the terms thereof, any other Indebtedness of Iridium or a
Restricted Subsidiary that ranks pari
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passu with the Series A Notes at a purchase price no greater than 100%
of the principal amount thereof plus accrued and unpaid interest and
liquidated damages, if any, to the date of purchase and (3) third, to
the extent of any remaining Net Available Proceeds after application
of clauses (1) and (2) of this Section 4.06(a)(iii), to the repayment
of other Indebtedness of Iridium or Indebtedness of a Restricted
Subsidiary, to the extent permitted under the terms thereof. To the
extent any Net Available Proceeds remain after such uses, Iridium and
the Restricted Subsidiaries may use such amounts for any purposes not
prohibited by this Indenture. Notwithstanding the foregoing, (x)
these provisions shall not apply to any Asset Disposition which
constitutes a transfer, conveyance, sale, lease or other disposition
of all or substantially all of Iridium's, Capital's or a Guarantor
Subsidiary's properties or assets as described under Article V and (y)
Iridium shall not be required to repurchase or redeem Series A Notes
pursuant to clause (2) of this Section 4.06(a)(iii) until Net
Available Proceeds from all Asset Dispositions in the aggregate, less
(x) any amounts invested within 180 days of such dispositions (or
committed by such 180th day for investment pursuant to a written
agreement which commits such investment within 180 days after the date
of such agreement) in a Related Business, (y) any amounts applied
pursuant to clause (1) above and (z) any amounts previously applied
pursuant to clause (1), (2) or (3) of this Section 4.06(a)(iii), are
greater than $10,000,000.
(b) The Note Issuers shall comply, to the extent applicable,
with the requirements of Section 14(e) of the Exchange Act and any other
securities laws or regulations in connection with the repurchase of Series A
Notes pursuant to this Section 4.06. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this covenant, the
Issuers shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached their obligations described under Section
4.06 by virtue thereof.
SECTION 4.07. Limitation on Transactions with Affiliates.
(a) Iridium shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, enter into any transaction (including the purchase,
sale, lease or exchange of any property or the rendering of any service) with
any Affiliate or Related Person of Iridium (other than Iridium or a
Wholly-Owned Restricted Subsidiary) that involves consideration in excess of
$5,000,000 (an "Affiliate Transaction") on terms (i) that, taken as a whole,
are less favorable to Iridium or such Restricted Subsidiary, as the case may
be, than those that could be obtained at the time of such transaction in
arm's-length dealings with a Person who is not such an Affiliate and (ii) that,
in the event such Affiliate Transaction involves an aggregate amount in excess
of $10,000,000, are not in writing and have not been approved either by a
majority of the members of the Board of Directors having no material direct or
indirect financial interest in or with respect to such Affiliate Transaction or
by the Related Party Contracts Committee, as defined by the LLC Agreement (if
appropriate under Iridium's Bylaws or the LLC Agreement). In addition, if such
Affiliate Transaction is an Asset Disposition involving any Affiliate or
Related Person of Iridium (other than Iridium or a Wholly-Owned Restricted
Subsidiary) for an aggregate consideration in excess of $25,000,000, a fairness
opinion to the effect that such transaction is fair (from a financial point of
view) to Iridium or the Restricted Subsidiary, as applicable, must be obtained
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from an Independent Financial Advisor or, with respect to
telecommunications-related matters, a recognized expert in the satellite
telecommunications industry.
(b) The provisions of the paragraph (a) of this Section
4.07(a) shall not apply to:
(i) employee benefit or compensation arrangements entered
into in the ordinary course of business and approved by the Board of
Directors;
(ii) transactions solely between or among Iridium and the
Restricted Subsidiaries;
(iii) Restricted Payments permitted by Section 4.04;
(iv) Investments by IWCL, an Affiliate or Related Person of
Iridium or Capital in the Capital Stock (other than Disqualified
Stock) of Iridium or any Restricted Subsidiary; and
(v) a transaction pursuant to an Existing Affiliate
Agreement, including any amendments thereto entered into after the
Issue Date, provided that the terms of any such amendment are not,
taken as a whole, less favorable to Iridium than the terms of the
relevant agreement prior to such amendment.
SECTION 4.08. Change of Control. (a) Upon the occurrence of
a Change of Control, each Holder shall have the right to require the Note
Issuers to repurchase all or any part of such Holder's Series A Notes at a
purchase price in cash equal to 101% of the principal amount of the Series A
Notes, plus accrued and unpaid interest and Liquidated Damages, if any, to the
date of purchase (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date in
accordance with the terms of this Indenture); provided, however, that
notwithstanding the occurrence of a Change of Control, the Note Issuers shall
not be obligated to purchase any Series A Note pursuant to this Section 4.08 to
the extent that the Note Issuers have exercised their rights to redeem such
Series A Note as described in Section 3.07.
(b) Within 30 days following any Change of Control, the Note
Issuers shall mail a notice to each Holder with a copy to the Trustees stating,
among other things: (1) that a Change of Control has occurred and that such
Holder has the right to require the Note Issuers to purchase all or any portion
of such Holder's Series A Notes at a purchase price in cash equal to 101% of
the principal amount of such Series A Notes, plus accrued and unpaid interest
and Liquidated Damages, if any, to the date of purchase (subject to the right
of Holders of record on a record date to receive interest due on the relevant
interest payment date in accordance with the terms of this Indenture); (2) the
circumstances and relevant facts regarding such Change of Control (including
information with respect to pro forma historical income, cash flow and
capitalization, each after giving effect to such Change of Control); (3) the
repurchase date (which shall be no earlier than 30 days nor later than 60 days
from the date such notice is mailed); and
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(4) the instructions determined by the Note Issuers, consistent with this
Section 4.08, that a Holder must follow in order to have its Series A Notes or
any portion thereof purchased.
(c) The Note Issuers shall comply, to the extent applicable,
with the requirements of Section 14(e) of the Exchange Act and any other
securities laws or regulations in connection with the repurchase of Series A
Notes pursuant to this Section 4.08. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section 4.08,
the Note Issuers shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached their obligations
described above by virtue thereof.
SECTION 4.09. Compliance Certificate. The Note Issuers shall
deliver to the Trustee within 120 days after the end of each fiscal year of the
Note Issuers an Officers' Certificate complying with Section 314(a)(4) of the
TIA and stating that in the course of the performance by the signers of their
duties as Officers of the Note Issuers they would normally have knowledge of
any Default or Event of Default and, if such signer does know of such a Default
or Event of Default, the certificate shall describe such Default or Event of
Default with particularity and describe what actions, if any, the Note Issuers
propose to take with respect to such Default or Event of Default.
SECTION 4.10. [Reserved]
SECTION 4.11. Limitation on the Sale or Issuance of Capital
Stock of Restricted Subsidiaries. Iridium shall not, and shall not permit any
Restricted Subsidiary to, issue, transfer, convey, sell or otherwise dispose of
any shares of Capital Stock of a Restricted Subsidiary or securities
convertible or exchangeable into Capital Stock of a Restricted Subsidiary or
securities convertible or exchangeable into Capital Stock of a Restricted
Subsidiary to any person other than Iridium, Capital or a Wholly-Owned
Restricted Subsidiary except (i) in a transaction consisting of a sale of all
the Capital Stock of such Restricted Subsidiary and that complies with Section
4.06 to the extent such provisions apply; (ii) if required, the issuance,
transfer, conveyance, sale or other disposition of directors' qualifying shares
or of interests required to be held by foreign nationals, in each case to the
extent mandated by applicable law; (iii) in a transaction in which, or in
connection with which, Iridium or a Restricted Subsidiary acquires at the same
time sufficient Capital Stock of such Restricted Subsidiary to at least
maintain the same percentage ownership interest it had prior to such
transaction; (iv) any grant, establishment or exercise of any Lien permitted
under Section 4.12; and (v) Disqualified Stock of a Restricted Subsidiary
Incurred to Refinance Disqualified Stock of such Restricted Subsidiary;
provided, however, that the amounts of the redemption obligations of such
Disqualified Stock may not exceed the amounts of the redemption obligations of,
and such Disqualified Stock shall have redemption obligations no earlier than
those required by, the Disqualified Stock being Refinanced.
SECTION 4.12. Limitation on Liens. (a) Iridium shall not,
and shall not permit any Restricted Subsidiary to, directly or indirectly,
create or permit to exist any Lien on any of its property or assets (including
Capital Stock), whether owned on the Issue Date or thereafter
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acquired, unless contemporaneously therewith effective provision is made to
secure the Series A Notes equally and ratably with such obligation for so long
as such obligation is so secured. The preceding sentence shall not require
Iridium or any Restricted Subsidiary to equally and ratably secure the Series A
Notes if the Lien consists of Permitted Liens.
(b) Any Lien created for the benefit of the Holders of the
Series A Notes pursuant to Section 4.12(a) shall provide by its terms that such
Lien shall be automatically and unconditionally released and discharged upon
the earlier of the release and discharge of the Lien which gave rise to the
obligation to secure the Series A Notes and the release and discharge of this
Indenture.
SECTION 4.13. Limitation on Lines of Business. Iridium shall
not, and shall not permit any Restricted Subsidiary to, engage in any business
other than a Related Business.
SECTION 4.14. Limitation on Business Activities of Capital.
Capital shall not hold any material assets, become liable for any material
obligations, engage in any trade or business, or conduct any business activity,
other than the issuance of Capital Stock to Iridium or any Wholly-Owned
Restricted Subsidiary, the Incurrence of Indebtedness as a co-obligor or
guarantor of Indebtedness Incurred by Iridium (including the Series A Notes and
the Series B Notes) that is permitted to be Incurred by Iridium pursuant to
Section 4.03 (provided that the net proceeds of such Indebtedness are retained
or utilized by Iridium or loaned to one or more of Iridium's Restricted
Subsidiaries other than Capital), and activities incidental thereto. Neither
Iridium nor any Restricted Subsidiary (other than Capital) shall engage in any
transactions with Capital in violation of the immediately preceding sentence.
SECTION 4.15. Future Guarantor Subsidiaries. Iridium shall
cause each Subsidiary created or acquired after the Issue Date (other than an
Unrestricted Subsidiary or a Foreign Subsidiary) to execute and deliver to the
Trustee a supplemental indenture, substantially in the form of Exhibit D,
pursuant to which such Subsidiary shall Guarantee payment of the Series A
Notes. Iridium may cause any Foreign Subsidiary to execute and deliver a
Subsidiary Guaranty in accordance with the provisions of this Indenture. Each
Subsidiary Guaranty shall be limited to an amount not to exceed the maximum
amount that can be Guaranteed by that Subsidiary without rendering the
Subsidiary Guaranty, as it relates to such Subsidiary, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally. In addition, the
Note Issuers shall not, and shall not permit any of the Guarantor Subsidiaries
to, make any Investment in any Subsidiary that is not a Guarantor Subsidiary
unless either (i) such Investment is permitted by Section 4.04 or (ii) such
Subsidiary executes and delivers a Subsidiary Guaranty in accordance with the
provisions of this Indenture.
SECTION 4.16. Maintenance of Insurance. Iridium shall
procure and maintain insurance with financially sound and reputable insurance
companies in such amounts, with such deductibles and covering such risks as is
customarily carried by companies engaged in a business
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or businesses similar to Iridium and owning properties in localities where
Iridium and the Restricted Subsidiaries operate, including without limitation
in-orbit insurance.
Within 30 days following the Issue Date and within 30 days
following any date on which Iridium renews or obtains insurance, Iridium shall
deliver to the Trustee an insurance certificate certifying the amount of
insurance then renewed or obtained and an Officers' Certificate stating that
such insurance, together with any other insurance, complies with this Section
4.16. In addition, Iridium shall cause to be delivered to the Trustee no less
than once each year an insurance certificate setting forth the amount of
insurance then carried, which insurance certificate shall entitle the Trustee
to (i) notice of any claim under any such insurance policy; and (ii) at least
30 days' notice from the provider of such insurance prior to the cancellation
of any such insurance.
In the event that Iridium receives any proceeds of any
in-orbit insurance, such proceeds shall constitute "Insurance Proceeds."
Promptly following the receipt of any Insurance Proceeds, Iridium shall apply
such Insurance Proceeds in accordance with Section 4.06(a)(iii) (treating such
Insurance Proceeds as Net Available Proceeds thereunder); provided, however,
that Insurance Proceeds shall only be required to be so applied to the extent
that the aggregate amount of all Insurance Proceeds received by Iridium exceeds
$10,000,000 in any 12-month period.
ARTICLE V
Successor Companies
SECTION 5.01. When Issuers May Merge or Transfer Assets. (a)
Neither Note Issuer shall consolidate with or merge with or into, or convey,
transfer or lease, in one transaction or a series of transactions, all or
substantially all its assets to any Person unless:
(i) the resulting, surviving or transferee Person (the
"Successor Company") shall be a Person organized and existing under
the laws of the United States of America, any State thereof or the
District of Columbia or the laws of Bermuda and the Successor Company
(if not Iridium) shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, all the obligations of Iridium under the Series A Notes
and this Indenture;
(ii) immediately after giving effect to such transaction on a
pro forma basis (and treating any Indebtedness which becomes an
obligation of the Successor Company or any Subsidiary as a result of
such transaction as having been Incurred by such Successor Company or
such Subsidiary at the time of such transaction), no Default shall
have occurred and be continuing;
(iii) immediately after giving effect to such transaction,
the Successor Company would be able to Incur an additional $1.00 of
Indebtedness under Section 4.03(a);
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(iv) immediately after giving effect to such transaction, the
Successor Company shall have Consolidated Net Worth in an amount which
is not less than the Consolidated Net Worth of Iridium immediately
prior to such transaction; and
(v) Iridium shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture.
The requirements of clause (iii) above shall not apply where Iridium merges
with or into, or conveys, transfers or leases, in one transaction or a series
of transactions, all or substantially all of its assets to, any Person with no
outstanding Indebtedness (other than Indebtedness which is also Indebtedness of
Iridium).
(b) Iridium may within six months of the Issue Date convey or
transfer in one transaction or a series of related transactions, all or
substantially all its assets to a Wholly-Owned Restricted Subsidiary of Iridium
upon compliance with clauses (i) and (v) of the preceding paragraph (and
without complying with clauses (ii) through (iv), inclusive, of the preceding
paragraph) (the "Asset Drop-Down Transaction").
(c) Iridium shall not permit any Guarantor Subsidiary to
consolidate with or merge with or into, or convey, transfer or lease, in one
transaction or a series of transactions, all or substantially all of its assets
to any Person unless: (i) the resulting, surviving or transferee Person (if not
such Subsidiary) is a Person organized and existing under the laws of the
jurisdiction under which such Subsidiary was organized or under the laws of the
United States of America, or any State thereof, the District of Columbia or the
laws of Bermuda, and such Person expressly assumes, by a guaranty agreement, in
a form satisfactory to the Trustee, all the obligations of such Subsidiary, if
any, under its related Subsidiary Guaranty (except to the extent it would not
otherwise have been required to provide a Subsidiary Guaranty); (ii)
immediately after giving effect to such transaction on a pro forma basis (and
treating any Indebtedness which becomes an obligation of the resulting,
surviving or transferee Person as a result of such transaction as having been
issued by such Person at the time of such transaction), no Default has occurred
and is continuing under this Indenture; and (iii) Iridium has delivered to the
Trustee an Officer's Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such guaranty agreement, if any,
complies with this Indenture.
(d) The Successor Company shall be the successor to Iridium
and shall succeed to, and be substituted for, and may exercise every right and
power of, Iridium, Capital or any Guarantor Subsidiary, respectively, under
this Indenture, the Series A Notes and the related Subsidiary Guaranty, as
applicable, and the predecessor Iridium, Capital or Guarantor Subsidiary,
respectively (other than in the case of a lease), shall be released from all
obligations and covenants under this Indenture and the Series A Notes or the
related Subsidiary Guaranty, as applicable.
ARTICLE VI
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Defaults and Remedies
SECTION 6.01. Events of Default. An "Event of Default"
occurs if:
(1) a default occurs in any payment of interest or Liquidated
Damages, if any, on any Series A Note when the same becomes due and
payable, and such default continues for a period of 30 days;
(2) a default occurs in the payment of the principal of any
Series A Note when the same becomes due and payable at its Stated
Maturity, upon optional redemption, upon required repurchase, upon
declaration or otherwise;
(3) either Note Issuer fails to comply with Section 5.01;
(4) either Note Issuer fails to comply with Section 4.03,
4.04, 4.05, 4.06, 4.07, 4.08, 4.11, 4.12, 4.13, 4.14, 4.15 and 4.16
(in each case, other than a failure to purchase Series A Notes when
required under Section 4.06 or 4.08) and such failure continues for 30
days after the notice specified in the penultimate paragraph of this
Section 6.01;
(5) any Note Issuer or Guarantor Subsidiary fails to comply
with any of its agreements in the Series A Notes or this Indenture
(other than those referred to in clause (1), (2), (3) or (4) above)
and such failure continues for 60 days after the notice specified in
the penultimate paragraph 6.01;
(6) any Note Issuer or Significant Subsidiary fails to pay
any Indebtedness of such Person within any applicable grace period
after final maturity or the acceleration of any such Indebtedness by
the holders of such Indebtedness because of a default and the total
amount of such Indebtedness unpaid or accelerated exceeds $10,000,000
or its foreign currency equivalent at the time;
(7) any Note Issuer or Significant Subsidiary pursuant to
or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
(C) consents to the appointment of a Custodian
of it or for any substantial part of its property;
(D) makes a general assignment for the benefit
of its creditors; or
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(E) takes any comparable action under any foreign
laws relating to insolvency;
(8) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against any Note Issuer or
Significant Subsidiary in an involuntary case;
(B) appoints a Custodian of any Note Issuer or
Significant Subsidiary or for any substantial part of its
property; or
(C) orders the winding up or liquidation of any
Note Issuer or Significant Subsidiary; or
(D) or any similar relief is granted under
foreign laws;
and the order or decree remains unstayed and in effect for 60 days;
(9) the rendering of any final judgment or decree (not
subject to appeal) in excess of $10,000,000 or its foreign currency
equivalent (net of amounts paid within 30 days of such judgment or
decree under any insurance, indemnity, bond, surety or similar
instrument) against any Note Issuer or Significant Subsidiary by a
court or other adjudicatory authority of competent jurisdiction to the
extent which such Note Issuer or Significant Subsidiary, as
applicable, is not insured by a third Person and such judgment or
decree remains outstanding and is not discharged, waived or stayed
within 30 days after the notice specified in the penultimate paragraph
of this Section 6.01;
(10) any Subsidiary Guaranty ceases to be in full force
and effect (except as contemplated by the terms thereof) or any
Guarantor Subsidiary shall deny or disaffirm its obligations under
this Indenture or any Subsidiary Guaranty;
(11) termination by Motorola of the Space System Contract
prior to delivery thereunder by Motorola of the Space System (as
defined therein), provided that such termination has not been
contested by Iridium in accordance with the Space System Contract or
by appropriate proceedings and, if such termination is so contested,
within 180 days of such notice such termination has not been withdrawn
or declared ineffective by any recognized court or mediator; or
(12) termination by Motorola of the Operation and
Maintenance Contract, or Motorola ceases to be the operator of the
IRIDIUM System prior to the Stated Maturity of the Series A Notes, in
each such case for a period of more than 30 days.
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The foregoing shall constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
The term "Bankruptcy Law" means Title 11, United States Code,
or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
A Default under clause (4), (5) or (9) shall not constitute an
Event of Default until the Trustee or the Holders of at least 25% in principal
amount of the outstanding Series A Notes notify the Note Issuers of the Default
and the Note Issuers do not cure such Default within the time specified in
clauses (4), (5), or (9) hereof after receipt of such notice.
The Note Issuers shall deliver to the Trustee, within 30 days
thereof, written notice in the form of an Officers' Certificate of any Event of
Default under clause (3), (6), (7) or (10) and any event which with the giving
of notice or the lapse of time would become an Event of Default under clause
(4), (5), (8), (9), (11) or (12), its status and what action Iridium is taking
or proposes to take in respect thereof.
SECTION 6.02. Acceleration. If an Event of Default (other
than an Event of Default specified in Section 6.01(7) or 6.01(8) with respect
to either Note Issuer) occurs and is continuing, the Trustee by notice to the
Note Issuers, or the Holders of at least 25% in principal amount of the
outstanding Series A Notes by notice to the Note Issuers and the Trustee, may
declare the principal of and accrued but unpaid interest and Liquidated
Damages, if any, on all of the Series A Notes to be due and payable. Upon such
a declaration, such principal and interest, shall be due and payable
immediately. If an Event of Default specified in Section 6.01(7) or 6.01(8)
with respect to either Note Issuer occurs and is continuing, the principal of
and interest and Liquidated Damages, if any, on all the Series A Notes shall
ipso facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders. The Holders of a majority
in principal amount of the Series A Notes by notice to the Trustee may rescind
an acceleration and its consequences if the rescission would not conflict with
any judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of acceleration. No such rescission shall affect any subsequent
Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of or interest on the Series A Notes or to enforce the
performance of any provision of the Series A Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Series A Notes or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder in exercising any
right or remedy accruing upon an Event of Default shall
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not impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a
majority in principal amount of the Series A Notes by written notice to the
Trustee may waive an existing Default and its consequences except (i) a Default
in the payment of the principal of or interest on a Series A Note or (ii) a
Default in respect of a provision that under Section 9.02 cannot be amended
without the consent of each Holder affected. When a Default is waived, it is
deemed cured, but no such waiver shall extend to any subsequent or other
Default or impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority
in principal amount of the outstanding Series A Notes may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or of exercising any trust or power conferred on the Trustee. However,
the Trustee may refuse to follow any direction that conflicts with law or this
Indenture or, subject to Section 7.01, that the Trustee determines is unduly
prejudicial to the rights of other Holders or would involve the Trustee in
personal liability. Prior to taking any action hereunder, the Trustee shall be
entitled to indemnification satisfactory to it in its sole discretion against
all losses and expenses caused by taking or not taking such action.
SECTION 6.06. Limitation on Suits. A Holder may not pursue
any remedy with respect to this Indenture or the Series A Notes unless:
(1) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the
Series A Notes then outstanding make a written request to the Trustee
to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(5) the Holders of a majority in principal amount of the
Series A Notes do not give the Trustee a direction inconsistent with
the request during such 60-day period.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and interest on the Series A Notes held by
such Holder, on or after the respective due dates expressed
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in the Series A Notes, or to bring suit for the enforcement of any such payment
on or after such respective dates, shall not be impaired or affected without
the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of
Default specified in Section 6.01(1) or 6.01(2) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Note Issuers for the whole amount then due and owing (together with
interest on any unpaid interest to the extent lawful) and the amounts provided
for in Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee
may file such proofs of claim and other papers or documents and take such other
actions, including participating as a member, voting or otherwise, of any
committee of creditors appointed in the matter, as may be necessary or
advisable in order to have the claims of the Trustee and the Holders allowed in
any judicial proceedings relative to the Note Issuers, any Guarantor
Subsidiary, their respective creditors or their property and, unless prohibited
by law or applicable regulations, may vote on behalf of the Holders in any
election of a trustee in bankruptcy or other Person performing similar
functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 7.07.
Nothing herein shall be deemed to empower the Trustee to
authorize or consent to, or accept or adopt on behalf of any Holder, any plan
of reorganization, arrangement, adjustment or composition affecting the Series
A Notes or the rights of any Holder, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money
or property from the Issuers pursuant to this Article VI, it shall pay out the
money or property in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders for amounts due and unpaid on the Series A
Notes for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Series A Notes for principal and interest, respectively; and
THIRD: to Iridium.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section. At least 15 days before such
record date, the Trustee shall mail to each
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Holder and the Note Issuers a notice that states the record date, the payment
date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any
party litigant in the suit, having due regard to the merits and good faith of
the claims or defenses made by the party litigant. This Section 6.11 does not
apply to a suit by the Note Issuers, a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 or a suit by Holders of more than 10% in principal
amount of the Series A Notes.
SECTION 6.12. Waiver of Stay or Extension Laws. The Issuers
(to the extent it may lawfully do so) shall not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture, any
of the Subsidiary Guaranties or any of the Series A Notes; and the Issuers (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and shall not hinder, delay or impede the execution
of any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 6.13. Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then, and in every such case, subject to any determination in such
proceeding, the Issuers, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Issuers, Trustee and Holders shall continue as
though no such proceeding had been instituted.
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee. (a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same degree of care and skill
in its exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
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(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to
the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own wilful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section and Section 7.02(e);
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a written
direction received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuers.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
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SECTION 7.02. Rights of Trustee. Subject to Section 7.01:
(a) The Trustee may conclusively rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee shall
not be liable for any action it takes or omits to take in good faith in
reliance on the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute wilful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Series A Notes shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder
in good faith and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers created in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction.
(g) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit.
SECTION 7.03. Individual Rights of Trustee. The Trustee in
its individual or any other capacity may become the owner or pledgee of Series
A Notes and may otherwise deal with the Issuers or its Affiliates with the same
rights it would have if it were not Trustee. Any Paying Agent, Registrar,
co-registrar or co-paying agent may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Series A Notes, it shall not be accountable for the Note
Issuers' use of the proceeds from the Series A Notes, it shall not be
responsible for the use or application of any monies received by a Paying Agent
other than the Trustee, and it shall not be responsible for any statement of
the Issuers in
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this Indenture or in any document issued in connection with the sale of the
Series A Notes or in the Series A Notes other than the Trustee's certificate of
authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Holder notice of such Default within the earlier of 90 days after it occurs or
30 days after it is known to a Trust Officer or written notice of it is
received by the Trustee. Except in the case of a Default in payment of
principal of, premium and Liquidated Damages, if any, or interest on any Series
A Note, the Trustee may withhold notice if and so long as a committee of its
Trust Officers in good faith determines that withholding the notice is in the
interests of Holders.
SECTION 7.06. Reports by Trustee to Holders. As promptly as
practicable after each May 15 beginning with May 15, 1998, and in any event
prior to July 15, 1998 in each year, the Trustee shall mail to each Holder a
brief report dated as of July 15, 1998 that complies with TIA Section 313(a)
(but if no event described in TIA Section 313(a) has occurred within the twelve
months preceding the reporting date, no report shall be transmitted). The
Trustee shall also comply with TIA Section 313(b) and TIA Section 313(c).
A copy of each report at the time of its mailing to Holders
shall be filed with the SEC and each stock exchange (if any) on which the
Series A Notes are listed. The Note Issuers agrees to notify promptly the
Trustee whenever the Series A Notes become listed on any stock exchange and of
any delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Note Issuers
shall pay to the Trustee, Paying Agent and Registrar from time to time
reasonable compensation for its services as agreed between the Note Issuers and
the Trustee, Paying Agent and Registrar. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Issuers shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred or made by it, including costs of collection,
in addition to the compensation for its services. Such expenses shall include
the reasonable compensation and expenses, disbursements and advances of the
Trustee's agents, counsel, accountants and other professionals. Any costs and
expenses associated with the Exchange Offer or Private Offer shall be paid by
the Note Issuers. The Note Issuers shall indemnify the Trustee, Paying Agent,
Registrar, and each of their officers, directors and employees (each in their
respective capacities), for and hold each of them harmless against any and all
loss, liability or expense (including attorneys' fees) incurred by them without
negligence or bad faith on their part in connection with the administration of
this trust and the performance of their duties hereunder, including the
reasonable costs and expenses of defending itself against any claim or
liability in connection with the acceptance, exercise or performance of any of
its powers or duties hereunder. The Trustee, Paying Agent and Registrar shall
notify the Note Issuers of any claim for which they may seek indemnity promptly
upon obtaining knowledge thereof; provided, however that any failure so to
notify the Note Issuers shall not relieve the Note Issuers of their indemnity
obligations hereunder except to the extent the Issuers shall have been
adversely affected thereby. The Note Issuers shall defend the claim and the
indemnified party shall provide reasonable cooperation at the Note Issuers'
expense in the
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defense. Such indemnified parties may have separate counsel and the Note
Issuers shall pay the fees and expenses of such counsel; provided, however that
the Note Issuers shall not be required to pay such fees and expenses if it
assumes such indemnified parties' defense and, in such indemnified parties'
reasonable judgment, there is no conflict of interest between the Note Issuers
and such parties in connection with such defense. The Note Issuers need not
pay for any settlement made without their written consent. The Note Issuers
need not reimburse any expense or indemnify against any loss, liability or
expense incurred by an indemnified party through such party's own wilful
misconduct, negligence or bad faith.
The Note Issuers' payment obligations pursuant to this Section
shall survive the discharge of this Indenture. When the Trustee, Paying Agent
or Registrar incurs expenses after the occurrence of a Default specified in
Section 6.01(7) or 6.01(8) with respect to the Issuers, the expenses are
intended to constitute expenses of administration under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign
at any time by so notifying the Note Issuers in writing. The Holders of a
majority in principal amount of the Series A Notes may remove the Trustee by so
notifying the Note Issuers and the Trustee and may appoint a successor Trustee
with the consent of the Note Issuers, which shall not be unreasonably withheld.
The Note Issuers shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Note Issuers or by
the Holders of a majority in principal amount of the Series A Notes and such
Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy
exists in the office of Trustee for any reason (the Trustee in such event being
referred to herein as the retiring Trustee), the Note Issuers shall promptly
appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Note Issuers. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in principal amount of the
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Series A Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to
this Section, the Issuers' obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Series A Notes shall have been authenticated but
not delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Series A Notes so
authenticated; and in case at that time any of the Series A Notes shall not
have been authenticated, any successor to the Trustee may authenticate such
Series A Notes either in the name of any predecessor hereunder or in the name
of the successor to the Trustee; and in all such cases such certificates shall
have the full force which it is anywhere in the Series A Notes or in this
Indenture provided that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee
shall at all times satisfy the requirements of TIA Section 310(a). The Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition. The Trustee shall
comply with TIA Section 310(b); provided, however, that there shall be excluded
from the operation of TIA Section 310(b)(1) any indenture or indentures under
which other securities or certificates of interest or participation in other
securities of the Issuers are outstanding if the requirements for such
exclusion set forth in TIA Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against
Issuers. The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
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ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Series A Notes;
Defeasance. (a) When (i) either Note Issuer delivers to the Trustee all
outstanding Series A Notes (other than Series A Notes replaced pursuant to
Section 2.07) for cancellation or (ii) all outstanding Series A Notes have
become due and payable, whether at maturity or as a result of the mailing of a
notice of redemption pursuant to Article III hereof and either Note Issuer
irrevncably deposits with the Trustee funds or Government Securities on which
payment of principal and interest when due shall be sufficient to pay at
maturity or upon redemption all outstanding Series A Notes, including interest
thereon to maturity or such redemption date (other than Series A Notes replaced
pursuant to Section 2.07), as certified to the Trustee by a nationally
recognized firm of independent accountants, and if in either case the Note
Issuers pay all other sums payable hereunder by the Note Issuers including, but
not limited to fees and expenses of the Trustee and its counsel, then this
Indenture shall, subject to Section 8.01(c), cease to be of further effect.
The Trustee shall acknowledge satisfaction and discharge of this Indenture on
demand of either Note Issuer accompanied by an Officers' Certificate and an
Opinion of Counsel.
(b) Subject to Sections 8.01(c), 8.02 and 8.06, the Note
Issuers at any time may terminate (i) all its obligations under the Series A
Notes and this Indenture ("legal defeasance option") or (ii) its obligations
under Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.11, 4.12, 4.13,
4.14, 4.15, 4.16, 5.01(a)(ii), 5.01(a)(iii) and 5.01(a)(iv) and the operation
of Sections 6.01(4), 6.01(5) (with respect to obligations that have been
defeased), 6.01(6), 6.01(7) (with respect to Significant Subsidiaries only),
6.01(8) (with respect to Significant Subsidiaries only), 6.01(9), 6.01(10),
6.01(11) and 6.01(12) ("covenant defeasance option"). The Note Issuers may
exercise their legal defeasance option notwithstanding their prior exercise of
its covenant defeasance option. If the Note Issuers exercise their legal
defeasance option or their covenant defeasance option, each Guarantor
Subsidiary shall be released from all of its obligations with respect to its
Subsidiary Guaranty (and no Restricted Subsidiary (other than Capital) will
thereafter be obligated to execute, deliver or endorse any Series A Note; nor
shall any such execution, delivery or endorsement thereafter bind any
Restricted Subsidiary).
If the Note Issuers exercise their legal defeasance option,
payment of the Series A Notes may not be accelerated because of an Event of
Default. If the Note Issuers exercise their covenant defeasance option,
payment of the Series A Notes may not be accelerated because of an Event of
Default specified in Sections 6.01(4), 6.01(5) (with respect to obligations
that have been defeased), 6.01(6), 6.01(7) (with respect to Significant
Subsidiaries only), 6.01(8) (with respect to Significant Subsidiaries only),
6.01(9), 6.01(10), 6.01(11) and 6.01(12) or because of the failure of the Note
Issuers to comply with Sections 5.01(ii), 5.01(iii) and 5.01(iv).
Upon satisfaction of the conditions set forth herein and upon
request of either Note Issuer, the Trustee shall acknowledge in writing the
discharge of those obligations that have been discharged, released, satisfied
or defeased.
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(c) Notwithstanding clauses (a) and (b) above, the Note
Issuers' obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 7.07, 7.08,
8.04, 8.05 and 8.06 shall survive until the Series A Notes have been paid in
full. Thereafter, the Note Issuers' obligations in Sections 7.07, 8.04 and
8.05 shall survive.
SECTION 8.02. Conditions to Defeasance. The Note Issuers may
exercise their legal defeasance option or its covenant defeasance option only
if:
(1) either Note Issuer irrevocably deposits in trust with the
Trustee money and/or Government Securities for the payment of
principal, premium and Liquidated Damages, if any, and interest on the
Series A Notes to maturity or redemption, as the case may be;
(2) the Note Issuers deliver to the Trustee a certificate from
a nationally recognized firm of independent accountants expressing
their opinion that the payments of principal and interest when due and
without reinvestment on the deposited Government Securities plus any
deposited money without investment shall provide cash at such times
and in such amounts as shall be sufficient to pay principal and
interest when due on all the Series A Notes to maturity or redemption,
as the case may be;
(3) 90 days pass after the deposit is made and during the
90-day period no Default specified in Section 6.01(7) or 6.01(8) with
respect to either Note Issuer occurs which is continuing at the end of
the period;
(4) the deposit does not constitute a default under any other
agreement binding on either Note Issuer;
(5) the Note Issuers deliver to the Trustee an Opinion of
Counsel to the effect that the trust resulting from the deposit does
not constitute, or is qualified as, a regulated investment company
under the Investment Company Act of 1940, unless such trust shall be
registered under and act as exempt from registration thereunder;
(6) in the case of the legal defeasance option, the Note
Issuers shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Note Issuers have received from, or there has
been published by, the Internal Revenue Service a ruling, or (ii)
since the date of this Indenture there has been a change in the
applicable federal income tax law, in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm that, the
Holders will not recognize income, gain or loss for federal income tax
purposes as a result of such defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance had not occurred;
(7) in the case of the covenant defeasance option, the Note
Issuers shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders will not recognize income, gain or loss
for federal income tax purposes as a result of such
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covenant defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred; and
(8) the Note Issuers delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance and discharge of the Securities
as contemplated by this Article VIII have been complied with.
Anything in this Section 8.02 to the contrary notwithstanding,
the Trustee shall deliver or pay to Iridium from time to time upon the request,
in writing, by either Note Issuer any cash in dollars or Government Securities
held by it as provided in paragraph (d) above which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent legal defeasance or covenant defeasance.
Before or after a deposit, the Note Issuers may make
arrangements satisfactory to the Trustee for the redemption of Series A Notes
at a future date in accordance with Article III.
SECTION 8.03. Application of Trust Money. The Trustee shall
hold in trust money or Government Securities deposited with it pursuant to this
Article VIII. It shall apply the deposited money and the money from Government
Securities through the Paying Agent and in accordance with this Indenture to
the payment of principal of and interest on the Series A Notes.
SECTION 8.04. Repayment to Note Issuers. The Trustee and the
Paying Agent shall promptly turn over to Iridium upon request any excess money
or securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to Iridium upon request any money held by them
for the payment of principal or interest that remains unclaimed for two years,
and, thereafter, Holders entitled to the money must look to the Issuers for
payment as general creditors.
SECTION 8.05. Indemnity for Government Securities. The Note
Issuers shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited Government Securities or the
principal and interest received on such Government Securities other than any
tax, fee or other charge which by law is for the account of the Holders.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent
is unable to apply any money or Government Securities in accordance with this
Article VIII by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Note Issuers' obligations under
this Indenture and the Series A Notes shall be revived and reinstated as though
no deposit
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had occurred pursuant to this Article VIII until such time as the Trustee or
Paying Agent is permitted to apply all such money or Government Securities in
accordance with this Article VIII; provided, however, that, if the Note Issuers
have made any payment of interest on or principal of any Series A Notes because
of the reinstatement of its obligations, the Note Issuers shall be subrogated
to the rights of the Holders of such Series A Notes to receive such payment
from the money or Government Securities held by the Trustee or Paying Agent.
ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders. The Note Issuers,
the Guarantor Subsidiaries and the Trustee may amend this Indenture or the
Securities without notice to or consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Section 4.15 or Article V;
(3) to provide for uncertificated Securities in addition to or
in place of Series A Notes; provided, however, that the uncertificated
Series A Notes are issued in registered form for purposes of Section
163(f) of the Code or in a manner such that the uncertificated Series
A Notes are described in Section 163(f)(2)(B) of the Code;
(4) to add further Subsidiary Guaranties with respect to the
Series A Notes or to release Guarantor Subsidiaries when permitted by
the terms hereof, or to secure the Series A Notes;
(5) to add to the covenants of the Note Issuers for the
benefit of the Holders or to surrender any right or power herein
conferred upon the Note Issuers;
(6) to comply with any requirements of the SEC in connection
with qualifying this Indenture under the TIA;
(7) to make any change that does not adversely affect the
rights of any Holder; and
(8) to provide for the issuance and authorization of the
Exchange Series A Notes or Private Exchange Series A Notes.
After an amendment under this Section becomes effective, the
Note Issuers shall mail to Holders a notice briefly describing such amendment.
The failure to give such notice to all Holders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section.
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SECTION 9.02. With Consent of Holders. The Note Issuers, the
Guarantor Subsidiaries and the Trustee may amend this Indenture or the Series A
Notes without notice to any Holder but with the written consent of the Holders
of at least a majority in principal amount of the Series A Notes. The Holders
of at least a majority in principal amount of the Series A Notes may waive
compliance by the Note Issuers or any Guarantor Subsidiary with any provision
or covenant of this Indenture or the Series A Notes. However, without the
consent of each Holder of an outstanding Series A Note, an amendment or waiver
may not:
(1) reduce the amount of Series A Notes whose Holders must
consent to an amendment or waiver;
(2) reduce the rate of or extend the time for payment of
interest or Liquidated Damages on any such Series A Note;
(3) reduce the principal of or extend the Stated Maturity of
any such Series A Note;
(4) reduce the premium payable upon the redemption of any
Series A Note or change the time at which any Series A Note may be
redeemed in accordance with Article III;
(5) make any Series A Note payable in money other than that
stated in such Series A Note;
(6) impair the right of any Holder to receive payment of
principal of and premium, Liquidated Damages and interest on such
Holder's Series A Notes on or after the due dates therefor or to
institute suit for the enforcement of any payment on or with respect
to such Holder's Series A Notes.
(7) modify the Subsidiary Guaranties (except as contemplated
by the terms thereof or of this Indenture) in any manner adverse to
the Holders; or
(8) make any change in Section 6.04, Section 6.07 or the third
sentence of this Section.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section becomes effective, the
Note Issuers shall mail to Holders a notice briefly describing such amendment.
The failure to give such notice to all Holders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section.
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SECTION 9.03. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Series A Notes shall comply with the TIA as
then in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers.
A consent to an amendment or a waiver by a Holder of a Series A Note shall bind
the Holder and every subsequent Holder of that Series A Note or portion of the
Series A Note that evidences the same debt as the consenting Holder's Series A
Note, even if notation of the consent or waiver is not made on the Series A
Note. However, any such Holder or subsequent Holder may revoke the consent or
waiver as to such Holder's Series A Note or portion of the Series A Note if the
Trustee receives the notice of revocation before the date the amendment or
waiver becomes effective. After an amendment or waiver becomes effective, it
shall bind every Holder. An amendment or waiver becomes effective once the
consents from the Holders of the requisite percentage in principal amount of
outstanding Series A Notes are received by the Notes Issuers or the Trustee.
The Note Issuers may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid
or effective for more than 120 days after such record date.
SECTION 9.05. Notation on or Exchange of Series A Notes. If
an amendment changes the terms of a Series A Note, the Trustee may require the
Holder of the Series A Note to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Series A Note regarding the changed terms
and return it to the Holder. Alternatively, if the Note Issuers or the Trustee
so determines, the Note Issuers in exchange for the Series A Note shall issue
and the Trustee shall authenticate a new Series A Note that reflects the
changed terms. Failure to make the appropriate notation or to issue a new
Series A Note shall not affect the validity of such amendment.
SECTION 9.06. Trustee To Sign Amendments. The Trustee shall
sign any amendment authorized pursuant to this Article IX if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing any
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture and
complies with the provisions hereof (including Section 9.03).
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ARTICLE X
Subsidiary Guarantees
SECTION 10.01. Subsidiary Guarantees. Each Guarantor
Subsidiary hereby jointly and severally unconditionally and irrevocably
guarantees, as a primary obligor and not merely as a surety, to each Holder and
to the Trustee and its successors and assigns (a) the full and punctual payment
of principal of and interest and Liquidated Damages on the Series A Notes when
due, whether at maturity, by acceleration, by redemption or otherwise, and all
other monetary obligations of the Note Issuers under this Indenture (including
obligations to the Trustee) and the Series A Notes and (b) the full and
punctual performance within applicable grace periods of all other obligations
of the Issuers whether for expenses, indemnification or otherwise under this
Indenture and the Series A Notes (all the foregoing being hereinafter
collectively called the "Obligations"). Each Guarantor Subsidiary further
agrees that the Obligations may be extended or renewed, in whole or in part,
without notice or further assent from each such Guarantor Subsidiary, and that
each such Guarantor Subsidiary shall remain bound under this Article X
notwithstanding any extension or renewal of any Obligation.
Each Guarantor Subsidiary waives presentation to, demand of,
payment from and protest to the Note Issuers of any of the Obligations and also
waives notice of protest for nonpayment. Each Guarantor Subsidiary waives
notice of any default under the Series A Notes or the Obligations. The
obligations of each Guarantor Subsidiary hereunder shall not be affected by (a)
the failure of any Holder or the Trustee to assert any claim or demand or to
enforce any right or remedy against the Note Issuers or any other Person under
this Indenture, the Series A Notes or any other agreement or otherwise; (b) any
extension or renewal of any thereof; (c) any rescission, waiver, amendment or
modification of any of the terms or provisions of this Indenture, the Series A
Notes or any other agreement; (d) the release of any security held by any
Holder or the Trustee for the Obligations or any of them; (e) the failure of
any Holder or Trustee to exercise any right or remedy against any other
guarantor of the Obligations; or (f) any change in the ownership of such
Guarantor Subsidiary, except as provided in Section 10.02(b).
Each Guarantor Subsidiary further agrees that its Subsidiary
Guaranty herein constitutes a guarantee of payment, performance and compliance
when due (and not a guarantee of collection) and waives any right to require
that any resort be had by any Holder or the Trustee to any security held for
payment of the Obligations.
The obligations of each Guarantor Subsidiary hereunder shall
not be subject to any reduction, limitation, impairment or termination for any
reason (except based on actual payment or performance or any release or
termination contemplated by this Indenture), including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any
defense of setoff, counterclaim, recoupment or termination whatsoever or by
reason of the invalidity, illegality or unenforceability of the Obligations or
otherwise. Without limiting the generality of the foregoing, the obligations
of each Guarantor Subsidiary herein shall not be discharged or impaired or
otherwise affected by the failure of any Holder or the Trustee to assert
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any claim or demand or to enforce any remedy under this Indenture, the Series A
Notes or any other agreement, by any waiver or modification of any thereof, by
any default, failure or delay, willful or otherwise, in the performance of the
Obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk
of, or would otherwise operate as a discharge of, a surety as a matter of law
or equity.
Each Guarantor Subsidiary further agrees that its Subsidiary
Guaranty herein shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of principal of or
interest on any Obligation is rescinded or must otherwise be restored by any
Holder or the Trustee upon the bankruptcy or reorganization of the Note Issuers
or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Holder or the Trustee has at law or in equity against any
Guarantor Subsidiary by virtue hereof, upon the failure of the Note Issuers to
pay the principal of or interest on any Obligation when and as the same shall
become due, whether at maturity, by acceleration, by redemption or otherwise,
or to perform or comply with any other Obligation, each Guarantor Subsidiary
hereby promises to and shall, upon receipt of written demand by the Trustee,
forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an
amount equal to the sum of (i) the unpaid principal amount of such Obligations,
(ii) accrued and unpaid interest on such Obligations (but only to the extent
not prohibited by law) and (iii) all other monetary Obligations of the Note
Issuers to the Holders and the Trustee.
Each Guarantor Subsidiary agrees that it shall not be entitled
to any right of subrogation in relation to the Holders in respect of any
Obligations guaranteed hereby until payment in full of all Obligations. Each
Guarantor Subsidiary further agrees that, as between it, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
Obligations guaranteed hereby may be accelerated as provided in Article VI for
the purposes of any Subsidiary Guaranty herein, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
Obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such Obligations as provided in Article VI, such Obligations
(whether or not due and payable) shall forthwith become due and payable by such
Guarantor Subsidiary for the purposes of this Section.
Each Guarantor Subsidiary also agrees to pay any and all costs
and expenses (including reasonable attorneys' fees and expenses) incurred by
the Trustee or any Holder in enforcing any rights under this Section.
SECTION 10.02. Limitation on Liability. (a) Any term or
provision of this Indenture to the contrary notwithstanding, the maximum,
aggregate amount of the obligations guaranteed hereunder by any Guarantor
Subsidiary shall not exceed the maximum amount that can be hereby guaranteed
without rendering this Indenture, as it relates to any Guarantor
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Subsidiary, voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer or similar laws affecting the rights of creditors
generally.
(b) This Subsidiary Guaranty as to any Guarantor Subsidiary
shall terminate and be of no further force or effect and such Guarantor
Subsidiary shall be released from its obligations in respect of this Subsidiary
Guaranty upon (i) the sale or other transfer (x) by such Guarantor Subsidiary
of all or substantially all of its assets or (y) of all of the Capital Stock of
such Guarantor Subsidiary, to a Person other than Iridium or a Subsidiary of
Iridium; provided, however, that such sale or transfer shall be deemed to
constitute an Asset Disposition and the Note Issuers shall comply with its
obligations under Section 4.06; (ii) the designation by Iridium of such
Guarantor Subsidiary as an Unrestricted Subsidiary in accordance with this
Indenture; (iii) reorganization of such Guarantor Subsidiary as a Foreign
Subsidiary; or (iv) upon satisfaction of the requirements of Section 5.01(d) or
8.01(b), as the case may be, that would permit such a release.
SECTION 10.03. Successors and Assigns. This Article X shall
be binding upon each Guarantor Subsidiary and its successors and assigns and
shall enure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges conferred upon that party in this
Indenture and in the Series A Notes shall automatically extend to and be vested
in such transferee or assignee, all subject to the terms and conditions of this
Indenture.
SECTION 10.04. No Waiver. Neither a failure nor a delay on
the part of either the Trustee or the Holders in exercising any right, power or
privilege under this Article X shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of
any right, power or privilege. The rights, remedies and benefits of the
Trustee and the Holders herein expressly specified are cumulative and not
exclusive of any other rights, remedies or benefits which either may have under
this Article X at law, in equity, by statute or otherwise.
SECTION 10.05. Modification. No modification, amendment or
waiver of any provision of this Article X, nor the consent to any departure by
any Guarantor Subsidiary therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Trustee, and then such waiver or
consent shall be effective only in the specific instance and for the purpose
for which given. No notice to or demand on any Guarantor Subsidiary in any
case shall entitle such Guarantor Subsidiary to any other or further notice or
demand in the same, similar or other circumstances.
SECTION 10.06. Initial Guarantors; Execution of Supplemental
Indenture for Future Guarantor Subsidiaries. Each Restricted Subsidiary which
is required to become, or is designated by Iridium to become, a Guarantor
Subsidiary pursuant to Section 4.15 shall promptly execute and deliver to the
Trustee a supplemental indenture in the form of Exhibit D hereto pursuant to
which such Subsidiary shall become a Guarantor Subsidiary under this Article X
and shall guarantee the Obligations. Concurrently with the execution and
delivery of such
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supplemental indenture, the Note Issuers shall deliver to the Trustee an
Opinion of Counsel and an Officers' Certificate to the effect that such
supplemental indenture has been duly authorized, executed and delivered by such
Subsidiary and that, subject to the application of bankruptcy, insolvency,
moratorium, fraudulent conveyance or transfer and other similar laws relating
to creditors' rights generally and to the principles of equity, whether
considered in a proceeding at law or in equity, the Subsidiary Guaranty of such
Guarantor Subsidiary is a legal, valid and binding obligation of such Guarantor
Subsidiary, enforceable against such Guarantor Subsidiary in accordance with
its terms.
ARTICLE XI
Miscellaneous
SECTION 11.01. Trust Indenture Act Controls. If any
provision of this Indenture limits, qualifies or conflicts with another
provision which is required to be included in this Indenture by the TIA, the
required provision shall control.
SECTION 11.02. Notices. Any notice or communication shall be
in writing and delivered in person or mailed by first-class mail or by national
overnight courier service addressed as follows:
if to any of the Issuers:
c/o Iridium LLC
1575 Eye Street, N.W.
Washington, DC 20005
Attention: General Counsel
Facsimile: (202) 842-0006
if to the Trustee:
State Street Bank and Trust Company
Corporate Services Division
4th Floor
2 International Place
Boston, MA 02110
Attention: Mr. Shawn George
Facsimile: (617) 664-5371
The Issuers or the Trustee by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
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Any notice or communication mailed to a Holder shall be mailed
to the Holder at such Holder's address as it appears on the registration books
of the Registrar and shall be sufficiently given if so mailed by first class
mail within the time prescribed.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it, except that any such notice to
the Trustee must be received by a Trust Officer to be duly given.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice.
SECTION 11.03. Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other Holders with
respect to their rights under this Indenture or the Series A Notes. The
Issuers, the Trustee, the Registrar and anyone else shall have the protection
of TIA Section 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Issuers to the Trustee to
take or refrain from taking any action under this Indenture, the Note Issuers
shall, if requested by the Trustee, furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee and complying with Section 11.05 stating
that, in the opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have
been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee and complying with Section 11.05 stating
that, in the opinion of such counsel, all such conditions precedent
have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that the individual making such certificate
or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
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(3) a statement that, in the opinion of such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 11.06. When Series A Notes Disregarded. In
determining whether the Holders of the required principal amount of Series A
Notes have concurred in any direction, waiver or consent, Series A Notes owned
by the Issuers or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuers shall
be disregarded and deemed not to be outstanding, except that, for the purpose
of determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Series A Notes which the Trustee knows are
so owned shall be so disregarded. Also, subject to the foregoing, only Series
A Notes outstanding at the time shall be considered in any such determination.
SECTION 11.07. Rules by Trustee Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a meeting of Holders.
The Registrar and the Paying Agent may make reasonable rules for their
functions.
SECTION 11.08. Legal Holidays. If a payment date is not a
Business Day, payment shall be made on the next succeeding day that is a
Business Day, and no interest shall accrue for the intervening period. If a
regular record date is not a Business Day, the record date shall not be
affected.
SECTION 11.09. Governing Law. THIS INDENTURE AND THE SERIES
A NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 11.10. No Recourse Against Others. A director,
officer, employee, incorporator or member or stockholder, as such, of Iridium
shall not have any liability for any obligations of any Issuer under the Series
A Notes or this Indenture or for any claim based on, in respect of or by reason
of such obligations or their creation. By accepting a Series A Note, each
Holder shall waive and release all such liability. The waiver and release
shall be part of the consideration for the issue of the Series A Notes. Such
waiver will not constitute a waiver of liabilities under the federal securities
laws if it is the view of the SEC that such a waiver would be against public
policy.
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SECTION 11.11. Successors. All agreements of the Issuers in
this Indenture and the Series A Notes shall bind their successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 11.12. Multiple Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. One signed copy is enough
to prove this Indenture.
SECTION 11.13. Table of Contents; Headings. The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
IRIDIUM LLC
by /s/ ROY GRANT
-------------------------
Name: Roy Grant
Title: Vice President-Treasurer and
acting Chief Financial Officer
IRIDIUM CAPITAL CORPORATION
by /s/ ROY GRANT
-------------------------
Name: Roy Grant
Title: Chief Financial Officer
IRIDIUM ROAMING LLC
by /s/ ROY GRANT
-------------------------
Name: Roy Grant
Title: acting chief financial officer
IRIDIUM IP LLC
by
by /s/ ROY GRANT
-------------------------
Name: Roy Grant
Title: acting chief financial officer
STATE STREET BANK AND TRUST
COMPANY, as Trustee
by /s/ SHAWN GEORGE
-------------------------
Name: Shawn George
Title: Assistant Secretary
88
EXHIBIT A
FORM OF FACE OF INITIAL SERIES A NOTE
[Global Series A Note Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUERS OR THEIR AGENTS FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.(1)
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO HEREIN.(1)
[Restricted Series A Note Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES
NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUERS OR ANY
AFFILIATE OF THE ISSUERS WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY) EXCEPT (A) TO THE ISSUERS, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFSHORE TRANSACTIONS MEETING THE REQUIREMENTS OF
RULE 903 OR RULE 904 UNDER THE SECURITIES ACT, (E) TO AN "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT
THAT IS AN INSTITUTIONAL INVESTOR ACQUIRING THE SECURITY IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
- --------
(1) These paragraphs should only be added if the Security is issued in global
form.
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SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND, IN EACH CASE (A)
THROUGH (F), IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF
THE UNITED STATES AND OTHER JURISDICTIONS AND SUBJECT TO THE ISSUERS' AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE
(D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN THE CASE OF ANY
OF THE FOREGOING CLAUSES (A) THROUGH (F), A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE ISSUERS AND THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
IRIDIUM LLC
IRIDIUM CAPITAL CORPORATION
13% SENIOR NOTE DUE 2005, SERIES A
No. CUSIP No. [ ]
$[ ]
IRIDIUM LLC, a Delaware limited liability corporation and
IRIDIUM CAPITAL CORPORATION, a Delaware corporation, as joint and several
obligors, promise to pay to [ ], or registered assigns, the principal sum of
$[__________] on July 15, 2005.
Interest Payment Dates: January 15 and July 15
Record Dates: January 1 and July 1
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Additional provisions of this Series A Note are set forth on the other
side of this Series A Note.
Dated: ________, ____
IRIDIUM LLC
By:
-------------------------
Name:
Title:
IRIDIUM CAPITAL CORPORATION
By:
-----------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
STATE STREET BANK AND TRUST COMPANY
as Trustee, certifies
that this is one of
the Series A Notes referred
to in the Indenture,
By:
-----------------------
Authorized Signatory
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Guaranteed pursuant to the Indenture:
IRIDIUM ROAMING LLC
By:
------------------------
Name:
Title:
IRIDIUM IP LLC
By:
-------------------------
Name:
Title:
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FORM OF REVERSE SIDE OF INITIAL SERIES A NOTE
13% Senior Note due 2005, Series A
1. Interest.
IRIDIUM LLC, a Delaware limited liability company ("Iridium")
and IRIDIUM CAPITAL CORPORATION, a Delaware corporation ("Capital" and together
with Iridium, the "Note Issuers"), as joint and several obligors, and IRIDIUM
ROAMING LLC and IRIDIUM IP LLC (together, the "Guarantor Subsidiaries", and
together with the Note Issuers, the "Issuers"), promise to pay interest on the
principal amount of the Series A Notes at the rate per annum shown above.
Iridium will pay interest in cash semi-annually in arrears on January 15 and
July 15 of each year (each an "Interest Payment Date"), commencing January 15,
1998. Interest payable on the Series A Notes shall be computed on the basis of
a 360-day year comprised of 30-day months.
2. Method of Payment.
The Note Issuers shall pay interest on the Series A Notes
(except defaulted interest) to the persons who are the registered holders at
the close of business on the Record Date immediately preceding the interest
payment date even if the Series A Notes are cancelled on registration of
transfer or registration of exchange after such Record Date. Holders must
surrender the Series A Notes to the Trustee to collect principal payments. The
Note Issuers shall pay principal and interest in money of the United States
that at the time of payment is legal tender for payment of public and private
debts ("U.S. Legal Tender"). However, the Note Issuers may pay principal and
interest by wire transfer of Federal funds, or interest by check payable in
such U.S. Legal Tender. The Note Issuers may deliver any such interest payment
to the Trustee or to a holder at the holder's registered address.
3. Paying Agent and Registrar
Initially, STATE STREET BANK AND TRUST COMPANY, a
Massachusetts banking corporation ("Trustee"), will act as Paying Agent and
Registrar. Iridium may appoint and change any Paying Agent, Registrar or
co-registrar without notice to the Holders. Iridium, Capital or any of
Iridium's domestically incorporated Wholly-Owned Subsidiaries may act as Paying
Agent, Registrar or co-registrar.
4. Indenture and Guarantees.
The Note Issuers issued the Series A Notes under an Indenture
dated as of July 16, 1997 (the "Indenture"), among the Note Issuers, as joint
and several obligors, the Guarantor Subsidiaries (as defined in the Indenture)
and the Trustee. Capitalized terms used herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the Series A Notes
include those stated in the Indenture and those made part of such Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S.C. ss.ss. 77aaa-77bbbb)
(the "TIA"), as in effect on the date of the Indenture until such time as the
Indenture is qualified under the TIA, and thereafter as in effect on the date
on which the Indenture is qualified under the TIA. Notwithstanding anything to
the contrary herein, the Series A Notes are subject to all such terms, and
holders of Series A Notes are referred to the Indenture and the TIA for a
statement of them. The Series A Notes are obligations of the Note Issuers
limited in aggregate principal amount to $300,000,000. Payment on each Series A
Note is guaranteed on a senior basis, jointly and severally, by the Guarantor
Subsidiaries pursuant to Article X of the Indenture.
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5. Optional Redemption.
Except as described in the next succeeding paragraph, the
Series A Notes will not be redeemable at the option of the Note Issuers prior
to July 15, 2002. On and after such date, the Series A Notes will be
redeemable, at either Note Issuer's option, in whole or in part, at any time
upon not less than 30 nor more than 60 days' prior notice mailed by first-class
mail to each Holder's registered address, at the following redemption prices
(expressed in percentages of principal amount), plus accrued and unpaid
interest and Liquidated Damages, if any, to the redemption date (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date that is on or prior to the date of
redemption), if redeemed during the 12-month period commencing on July 15 of
the years set forth below:
REDEMPTION
YEAR PRICE
---- -----
2002 106.750%
2003 103.375%
2004 and thereafter 100.000%
In addition, at any time and from time to time on or prior to
July 15, 2000, either Note Issuer may redeem in the aggregate up to 33-1/3% of
the original aggregate principal amount of the Series A Notes with the cash
proceeds to Iridium of one or more Equity Offerings, at a redemption price
(expressed as a percentage of principal amount thereof) of 113.5% plus accrued
and unpaid interest and Liquidated Damages, if any, to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date that is on or prior
to the date of redemption); provided, however, that at least 66-2/3% of the
original aggregate principal amount of the Series A Notes must remain
outstanding after each such redemption.
6. Notice of Redemption.
In the case of any partial redemption, selection of the
Series A Notes for redemption will be made by the Trustee on a pro rata basis,
by lot or by such other method as the Trustee in its sole discretion deems to
be fair and appropriate, although no Series A Note of $1,000 in original
principal amount or less will be redeemed in part. If any Series A Note is to
be redeemed in part only, the notice of redemption relating to such Series A
Note will state the portion of the principal amount thereof to be redeemed. A
new Series A Note in principal amount equal to the unredeemed portion thereof
will be issued in the name of the Holder thereof upon cancellation of the
original Series A Note.
7. Subsidiary Guaranties.
The Initial Guarantors will provide Subsidiary Guaranties on
the Issue Date. In the event that, after the Issue Date, Iridium acquires or
creates a Subsidiary other than a Foreign Subsidiary, Iridium will cause such
Subsidiary (unless such Subsidiary is an Unrestricted Subsidiary) to, jointly
and severally, as primary obligors and not merely as sureties, irrevocably
Guarantee on a senior unsecured basis the performance and punctual payment when
due, whether at Stated Maturity, by acceleration or otherwise, of all
obligations of the Note Issuers under the Indenture and the Series A Notes
issued pursuant thereto. Iridium may cause any Foreign Subsidiary to execute
and deliver a Subsidiary Guaranty in accordance with the provisions of the
Indenture, in which case such Foreign Subsidiary will be a "Guarantor
Subsidiary" for purposes of the Indenture. Each Subsidiary Guaranty will be
limited
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in amount to an amount not to exceed the maximum amount that can be Guaranteed
by the applicable Guarantor Subsidiary without rendering such Subsidiary
Guaranty voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer or similar laws affecting the rights of creditors
generally.
A Subsidiary Guaranty will be released upon (i) the sale of
all of the Capital Stock, or all or substantially all of the assets, of the
applicable Guarantor Subsidiary (in each case to an entity other than to
Iridium or a Subsidiary of Iridium), (ii) the designation by Iridium of the
applicable Guarantor Subsidiary as an Unrestricted Subsidiary, in each case in
compliance with the Indenture, (iii) the reorganization of the applicable
Guarantor Subsidiary as a Foreign Subsidiary or (iv) upon satisfaction of the
requirements of Section 5.01(d) (merger) or 8.01(b) (defeasance) of the
Indenture.
8. Change of Control Offer.
Upon the occurrence of a Change of Control, each Holder will
have the right to require the Note Issuers to repurchase all or any part of
such Holder's Series A Notes at a purchase price in cash equal to 101% of the
principal amount of the Series A Notes, plus accrued and unpaid interest and
Liquidated Damages, if any, to the date of purchase.
9. Denominations; Transfer; Exchange
The Series A Notes are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Series A Notes in accordance with the Indenture. Upon any transfer or
exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay
any taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Series A Notes selected for redemption
(except, in the case of a Series A Note to be redeemed in part, the portion of
the Series A Note not to be redeemed) or to transfer or exchange any Series A
Notes for a period of 15 days prior to a selection of Series A Notes to be
redeemed or 15 days before an interest payment date.
10. Persons Deemed Owners
The registered Holder of this Series A Note may be treated as
the owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall, subject to the
requirements of applicable escheat laws, pay the money back to the Note Issuers
at its written request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Note Issuers and not to the Trustee for payment.
12. Legal Defeasance and Covenant Defeasance.
The Note Issuers at any time may terminate all their
obligations under the Series A Notes and the Indenture upon satisfaction of
certain conditions specified in the Indenture, except for certain obligations,
including those respecting the defeasance trust and obligations to register the
transfer or exchange of the Series A Notes, to replace mutilated, destroyed,
lost or stolen Series A Notes and to maintain a registrar and paying agent in
respect of the Series A Notes. The Note Issuers at any time may terminate their
obligations under certain restrictive covenants.
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If the Note Issuers exercise their legal defeasance option or their covenant
defeasance option, each Guarantor Subsidiary will be released from all of its
obligations with respect to its Subsidiary Guaranty (and no Restricted
Subsidiary (other than Capital) will thereafter be obligated to execute,
deliver, or endorse any Series A Note; nor shall any such execution, delivery
or endorsement thereafter bind any Restricted Subsidiary).
13. Amendment and Waiver.
Subject to certain exceptions, the Indenture may be amended
with the consent of the Holders of a majority in principal amount of the Series
A Notes then outstanding and any past default and its consequences or
compliance with any provisions may be waived with the consent of the Holders of
a majority in principal amount of the Series A Notes then outstanding. Without
the consent of any Holder, the Note Issuers and the Trustee may amend the
Indenture to cure any ambiguity, omission, defect or inconsistency, to provide
for the assumption by a successor corporation of the obligations of either Note
Issuer under the Indenture, to provide for uncertificated Series A Notes in
addition to or in place of certificated Series A Notes, to add further
Subsidiary Guaranties with respect to such Series A Notes, to release Guarantor
Subsidiaries when permitted by such Indenture, to secure such Series A Notes,
to add to the covenants of the Note Issuers for the benefit of the Holders of
such Series A Notes or to surrender any right or power conferred upon the Note
Issuers, to make any change that does not adversely affect the rights of any
Holder of such Series A Notes or to comply with any requirement of the SEC in
connection with the qualification of such Indenture under the TIA.
14. Restrictive Covenants.
The Indenture contains certain covenants that, among other
things, limit the ability of Iridium and its Restricted Subsidiaries to make
restricted payments, to incur indebtedness, to create liens, to issue capital
stock of subsidiaries, to sell assets, to permit restrictions on dividends and
other payments by subsidiaries to Iridium, to consolidate, merge or sell all or
substantially all of its assets, to engage in transactions with affiliates, to
maintain insurance or to engage in certain businesses. The limitations are
subject to a number of important qualifications and exceptions. The Note
Issuers must report to the Trustee on compliance with such limitations.
15. Defaults and Remedies.
If an Event of Default under the Indenture occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the outstanding Series A Notes by notice to the Note Issuers and the Trustee in
writing may declare the principal of and accrued but unpaid interest on and
Liquidated Damages, if any, on all the Series A Notes to be due and payable. If
an Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of either Note Issuer occurs and is continuing, the principal of
and Liquidated Damages, if any, and interest on all the Series A Notes will
become immediately due and payable without any declaration or other act on the
part of the Trustee or any Holders. Holders of Series A Notes may not enforce
the Indenture or the Series A Notes except as provided in the Indenture. Under
certain circumstances, the Holders of a majority in principal amount of the
Series A Notes then outstanding may rescind any such acceleration with respect
to the Series A Notes and its consequences.
16. No Recourse Against Others.
No director, officer, employee, incorporator or member of
Iridium, as such, will have any liability for any obligations of the Note
Issuers or any Guarantor Subsidiary under the Series A Notes or the Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each holder of Series A Notes
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by accepting a Series A Note waives and releases all such liability (such
waiver will not constitute a waiver of liabilities under the Federal securities
laws, however, if it is the view of the SEC that such a waiver would be against
public policy).
17. Registration Rights.
Pursuant to the Exchange and Registration Rights Agreement,
the Issuers will be obligated upon the occurrence of certain events to
consummate an exchange offer pursuant to which the holders of Series A Notes
shall, subject to certain limitations, have the right to exchange Initial
Series A Notes for the Exchange Series A Notes or Private Exchange Series A
Notes, which will be registered under the Securities Act, in like principal
amount and having terms identical in all material respects as the Series A
Notes. The Holders shall be entitled to receive certain liquidated damages in
the event such exchange offer is not consummated and upon certain other
conditions, all pursuant to and in accordance with the terms of the Exchange
and Registration Rights Agreement.
18. Trustee Dealings with the Note Issuers
Subject to certain limitations imposed by the Act, the
Trustee under the Indenture, in its individual or any other capacity, may
become the owner or pledgee of Series A Notes and may otherwise deal with and
collect obligations owed to it by the Note Issuers or its Affiliates and may
otherwise deal with the Note Issuers or its Affiliates with the same rights it
would have if it were not Trustee.
19. Governing Law
THE SERIES A NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
20. Authentication
This Series A Note shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent) manually signs the
certificate of authentication on the other side of this Series A Note.
21. Abbreviations
Customary abbreviations may be used in the name of a Holder
or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
22. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Note Issuers have caused CUSIP
numbers to be printed on the Series A Notes and has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Series A Notes or as contained in any notice of redemption and reliance may
be placed only on the other identification numbers placed thereon.
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THE NOTE ISSUERS WILL FURNISH TO ANY HOLDER UPON WRITTEN
REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH HAS IN
IT THE TEXT OF THIS SERIES A NOTE IN LARGER TYPE. REQUESTS MAY BE MADE TO:
IRIDIUM LLC
1575 EYE STREET, N.W.
WASHINGTON, DC 20005
ATTENTION: GENERAL COUNSEL
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Series A Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to
transfer this Series A Note on the books of the Note Issuers. The agent may
substitute another to act for him or her.
- -------------------------
Date: Your Signature:
------------------ ----------------------
Signature Guarantee:
---------------------------------------------
(Signature must be guaranteed by a
participant in a recognized signature
guarantee medallion program)
- --------------------------------------
Sign exactly as your name appears on the other side of this Security.
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF
TRANSFER RESTRICTED SECURITIES
This certificate relates to $ principal amount of Series A Notes held in (check
applicable space) _________________ book-entry or ________________ definitive
form by the undersigned.
The undersigned (check one box below):
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Series A Note held by the
Depository a Series A Note or Series A Notes in definitive, registered
form of authorized denominations and an aggregate principal amount
equal to its beneficial interest in such Global Series A Note (or the
portion thereof indicated above), subject to the restrictions in
Article II of the Indenture;
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Series A Note or Series A Notes.
In connection with any transfer of any of the Series A Notes evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act after the later of the date of original
issuance of such Series A Notes and the last date, if any, on which such Series
A Notes were owned by the Note Issuers or any Affiliate of the Note Issuers,
the undersigned confirms that such principal amount of Series A Notes are being
transferred in accordance with its terms:
CHECK ONE BOX BELOW:
(1) [ ] to the Issuers; or
(2) [ ] pursuant to an effective registration statement under
the Securities Act of 1933; or
(3) [ ] inside the United States to a "qualified
institutional buyer" (as defined in Rule 144A under
the Securities Act of 1933) that purchases for its
own account or for the account of a qualified
institutional buyer to whom notice is given that
such transfer is being made in reliance on Rule
144A, in each case pursuant to and in compliance
with Rule 144A under the Securities Act of 1933; or
(4) [ ] outside the United States in an offshore transaction
meeting the requirements of Rule 903 or Rule 904
under the Securities Act of 1933; or
(5) [ ] inside the United States to an "accredited
investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act that is an
institutional investor acquiring in a transaction
exempt from the registration requirements of the
Securities Act; or
(6) [ ] pursuant to another available exemption from the
registration requirements of the Securities Act of
1933.
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Unless one of the boxes is checked, the Trustee will refuse to
register any of the Series A Notes evidenced by this certificate in
the name of any person other than the registered holder thereof;
provided, however, that if box (4), (5) or (6) is checked, the Issuers
or the Trustee may require, prior to registering any such transfer of
the Series A Notes, such legal opinions, certifications and/or other
information satisfactory to each of them to confirm that such transfer
is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of
1933.
---------------------------------
Signature
Signature Guarantee:
- ---------------------------- --------------------------------
Signature must be guaranteed Signature
- -------------------------------------------
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Series A Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Note Issuers as the undersigned has requested pursuant to Rule
144A or has determined not to request such information and that it is aware
that the transferor is relying upon the undersigned's foregoing representations
in order to claim the exemption from registration provided by Rule 144A.
Dated:
---------------------- --------------------------
Signature
NOTICE: To be executed by
an executive officer
This certificate is in addition to any other certificates that may be required
under the Indenture.
101
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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SERIES A NOTE(1)
The following increases or decreases in this Global Series A
Note have been made:
Amount of decrease Amount of increase Principal amount Signature of
in Principal in Principal of this Global authorized officer
Date of Amount of this Amount of this Series A Note following such of Trustee or
Exchange Global Series A Note Global Series A Note decrease or increase Series A Notes Custodian
- -------- -------------------- -------------------- -------------------- ------------------------
- --------
(1) This schedule should only be added if the Security is issued in global
form.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Series A Note purchased by
the Note Issuers pursuant to Section 4.06 or 4.08 of the Indenture, check the
box:
[ ]
Date: Your Signature:
----------------- -----------------------------------
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:
---------------------------------------
(Signature must be guaranteed by a
participant in a recognized signature
guarantee medallion program)
103
EXHIBIT B
FORM OF FACE OF EXCHANGE SERIES A NOTE
OR PRIVATE EXCHANGE SERIES A NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUERS OR THEIR AGENTS FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO HEREIN.(1)
IRIDIUM LLC
IRIDIUM CAPITAL CORPORATION
13% SENIOR NOTE DUE 2005, SERIES A
No. CUSIP No. [ ]
$[ ]
IRIDIUM LLC, a Delaware limited liability corporation and
IRIDIUM CAPITAL CORPORATION, a Delaware corporation, as joint and several
obligors, promise to pay to [ ], or registered assigns, the principal sum of
$[ ] on July 15, 2005.
Interest Payment Dates: January 15 and July 15
Record Dates: January 1 and July 1
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Additional provisions of this Series A Note are set forth on the other
side of this Series A Note.
Dated:
IRIDIUM LLC
By:
--------------------------------
Name:
Title:
IRIDIUM CAPITAL CORPORATION
By:
--------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
STATE STREET BANK AND
TRUST COMPANY
as Trustee, certifies
that this is one of
the Series A Notes referred
to in the Indenture,
By:
---------------------------
Authorized Signatory
105
3
FORM OF REVERSE SIDE OF EXCHANGE SERIES A NOTE
13% Senior Note due 2005, Series A
1. Interest.
IRIDIUM LLC, a Delaware limited liability company ("Iridium")
and IRIDIUM CAPITAL CORPORATION, a Delaware corporation ("Capital" and together
with Iridium, the "Note Issuers"), as joint and several obligors, and IRIDIUM
ROAMING LLC and IRIDIUM IP LLC (together, the "Guarantor Subsidiaries", and
together with the Note Issuers, the "Issuers"), promise to pay interest on the
principal amount of the Series A Notes at the rate per annum shown above.
Iridium will pay interest in cash semi-annually in arrears on January 15 and
July 15 of each year (each an "Interest Payment Date"), commencing January 15,
1998. Interest payable on the Series A Notes shall be computed on the basis of
a 360-day year comprised of 30-day months.
2. Method of Payment.
The Note Issuers shall pay interest on the Series A Notes
(except defaulted interest) to the persons who are the registered holders at
the close of business on the Record Date immediately preceding the interest
payment date even if the Series A Notes are cancelled on registration of
transfer or registration of exchange after such Record Date. Holders must
surrender the Series A Notes to the Trustee to collect principal payments. The
Note Issuers shall pay principal and interest in money of the United States
that at the time of payment is legal tender for payment of public and private
debts ("U.S. Legal Tender"). However, the Note Issuers may pay principal and
interest by wire transfer of Federal funds, or interest by check payable in
such U.S. Legal Tender. The Note Issuers may deliver any such interest payment
to the Trustee or to a holder at the holder's registered address.
3. Paying Agent and Registrar
Initially, STATE STREET BANK AND TRUST COMPANY, a
Massachusetts banking corporation ("Trustee"), will act as Paying Agent and
Registrar. Iridium may appoint and change any Paying Agent, Registrar or
co-registrar without notice to the Holders. Iridium, Capital or any of
Iridium's domestically incorporated Wholly-Owned Subsidiaries may act as Paying
Agent, Registrar or co-registrar.
4. Indenture and Guarantees.
The Note Issuers issued the Series A Notes under an Indenture
dated as of July 16, 1997 (the "Indenture"), among the Note Issuers, as joint
and several obligors, the Guarantor Subsidiaries (as defined in the Indenture)
and the Trustee. Capitalized terms used herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the Series A Notes
include those stated in the Indenture and those made part of such Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S.C. ss.ss. 77aaa-77bbbb)
(the "TIA"), as in effect on the date of the Indenture until such time as the
Indenture is qualified under the TIA, and thereafter as in effect on the date
on which the Indenture is qualified under the TIA. Notwithstanding anything to
the contrary herein, the Series A Notes are subject to all such terms, and
holders of Series A Notes are referred to the Indenture and the TIA for a
statement of them. The Series A Notes are obligations of the Note Issuers
limited in aggregate principal amount to $300,000,000. Payment on each Series A
Note is guaranteed on a senior basis, jointly and severally, by the Guarantor
Subsidiaries pursuant to Article X of the Indenture.
106
4
5. Optional Redemption.
Except as described in the next succeeding paragraph, the
Series A Notes will not be redeemable at the option of the Note Issuers prior
to July 15, 2002. On and after such date, the Series A Notes will be
redeemable, at either Note Issuer's option, in whole or in part, at any time
upon not less than 30 nor more than 60 days' prior notice mailed by first-class
mail to each Holder's registered address, at the following redemption prices
(expressed in percentages of principal amount), plus accrued and unpaid
interest and Liquidated Damages, if any, to the redemption date (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date that is on or prior to the date of
redemption), if redeemed during the 12-month period commencing on July 15 of
the years set forth below:
REDEMPTION
YEAR PRICE
---- -----
2002 106.750%
2003 103.375%
2004 and thereafter 100.000%
In addition, at any time and from time to time on or prior to
July 15, 2000, either Note Issuer may redeem in the aggregate up to 33-1/3% of
the original aggregate principal amount of the Series A Notes with the cash
proceeds to Iridium of one or more Equity Offerings, at a redemption price
(expressed as a percentage of principal amount thereof) of 113.5% plus accrued
and unpaid interest and Liquidated Damages, if any, to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date that is on or prior
to the date of redemption); provided, however, that at least 66-2/3% of the
original aggregate principal amount of the Series A Notes must remain
outstanding after each such redemption.
6. Notice of Redemption.
In the case of any partial redemption, selection of the
Series A Notes for redemption will be made by the Trustee on a pro rata basis,
by lot or by such other method as the Trustee in its sole discretion deems to
be fair and appropriate, although no Series A Note of $1,000 in original
principal amount or less will be redeemed in part. If any Series A Note is to
be redeemed in part only, the notice of redemption relating to such Series A
Note will state the portion of the principal amount thereof to be redeemed. A
new Series A Note in principal amount equal to the unredeemed portion thereof
will be issued in the name of the Holder thereof upon cancellation of the
original Series A Note.
7. Subsidiary Guaranties.
The Initial Guarantors will provide Subsidiary Guaranties on
the Issue Date. In the event that, after the Issue Date, Iridium acquires or
creates a Subsidiary other than a Foreign Subsidiary, Iridium will cause such
Subsidiary (unless such Subsidiary is an Unrestricted Subsidiary) to, jointly
and severally, as primary obligors and not merely as sureties, irrevocably
Guarantee on a senior unsecured basis the performance and punctual payment when
due, whether at Stated Maturity, by acceleration or otherwise, of all
obligations of the Note Issuers under the Indenture and the Series A Notes
issued pursuant thereto. Iridium may cause any Foreign Subsidiary to execute
and deliver a Subsidiary Guaranty in accordance with the provisions of the
Indenture, in which case such Foreign Subsidiary will be a "Guarantor
Subsidiary" for purposes of the Indenture. Each Subsidiary Guaranty will be
limited
107
5
in amount to an amount not to exceed the maximum amount that can be Guaranteed
by the applicable Guarantor Subsidiary without rendering such Subsidiary
Guaranty voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer or similar laws affecting the rights of creditors
generally.
A Subsidiary Guaranty will be released upon (i) the sale of
all of the Capital Stock, or all or substantially all of the assets, of the
applicable Guarantor Subsidiary (in each case to an entity other than to
Iridium or a Subsidiary of Iridium), (ii) the designation by Iridium of the
applicable Guarantor Subsidiary as an Unrestricted Subsidiary, in each case in
compliance with the Indenture, (iii) the reorganization of the applicable
Guarantor Subsidiary as a Foreign Subsidiary or (iv) upon satisfaction of the
requirements of Section 5.01(d) (merger) or 8.01(b) (defeasance) of the
Indenture.
8. Change of Control Offer.
Upon the occurrence of a Change of Control, each Holder will
have the right to require the Note Issuers to repurchase all or any part of
such Holder's Series A Notes at a purchase price in cash equal to 101% of the
principal amount of the Series A Notes, plus accrued and unpaid interest and
Liquidated Damages, if any, to the date of purchase.
9. Denominations; Transfer; Exchange
The Series A Notes are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Series A Notes in accordance with the Indenture. Upon any transfer or
exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay
any taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Series A Notes selected for redemption
(except, in the case of a Series A Note to be redeemed in part, the portion of
the Series A Note not to be redeemed) or to transfer or exchange any Series A
Notes for a period of 15 days prior to a selection of Series A Notes to be
redeemed or 15 days before an interest payment date.
10. Persons Deemed Owners
The registered Holder of this Series A Note may be treated as
the owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall, subject to the
requirements of applicable escheat laws, pay the money back to the Note Issuers
at its written request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Note Issuers and not to the Trustee for payment.
12. Legal Defeasance and Covenant Defeasance.
The Note Issuers at any time may terminate all their
obligations under the Series A Notes and the Indenture upon satisfaction of
certain conditions specified in the Indenture, except for certain obligations,
including those respecting the defeasance trust and obligations to register the
transfer or exchange of the Series A Notes, to replace mutilated, destroyed,
lost or stolen Series A Notes and to maintain a registrar and paying agent in
respect of the Series A Notes. The Note Issuers at any time may terminate their
obligations under certain restrictive covenants.
108
6
If the Note Issuers exercise their legal defeasance option or their covenant
defeasance option, each Guarantor Subsidiary will be released from all of its
obligations with respect to its Subsidiary Guaranty (and no Restricted
Subsidiary (other than Capital) will thereafter be obligated to execute,
deliver, or endorse any Series A Note; nor shall any such execution, delivery
or endorsement thereafter bind any Restricted Subsidiary).
13. Amendment and Waiver.
Subject to certain exceptions, the Indenture may be amended
with the consent of the Holders of a majority in principal amount of the Series
A Notes then outstanding and any past default and its consequences or
compliance with any provisions may be waived with the consent of the Holders of
a majority in principal amount of the Series A Notes then outstanding. Without
the consent of any Holder, the Note Issuers and the Trustee may amend the
Indenture to cure any ambiguity, omission, defect or inconsistency, to provide
for the assumption by a successor corporation of the obligations of either Note
Issuer under the Indenture, to provide for uncertificated Series A Notes in
addition to or in place of certificated Series A Notes, to add further
Subsidiary Guaranties with respect to such Series A Notes, to release Guarantor
Subsidiaries when permitted by such Indenture, to secure such Series A Notes,
to add to the covenants of the Note Issuers for the benefit of the Holders of
such Series A Notes or to surrender any right or power conferred upon the Note
Issuers, to make any change that does not adversely affect the rights of any
Holder of such Series A Notes or to comply with any requirement of the SEC in
connection with the qualification of such Indenture under the TIA.
14. Restrictive Covenants.
The Indenture contains certain covenants that, among other
things, limit the ability of Iridium and its Restricted Subsidiaries to make
restricted payments, to incur indebtedness, to create liens, to issue capital
stock of subsidiaries, to sell assets, to permit restrictions on dividends and
other payments by subsidiaries to Iridium, to consolidate, merge or sell all or
substantially all of its assets, to engage in transactions with affiliates, to
maintain insurance or to engage in certain businesses. The limitations are
subject to a number of important qualifications and exceptions. The Note
Issuers must report to the Trustee on compliance with such limitations.
15. Defaults and Remedies.
If an Event of Default under the Indenture occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the outstanding Series A Notes by notice to the Note Issuers and the Trustee in
writing may declare the principal of and accrued but unpaid interest on and
Liquidated Damages, if any, on all the Series A Notes to be due and payable. If
an Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of either Note Issuer occurs and is continuing, the principal of
and Liquidated Damages, if any, and interest on all the Series A Notes will
become immediately due and payable without any declaration or other act on the
part of the Trustee or any Holders. Holders of Series A Notes may not enforce
the Indenture or the Series A Notes except as provided in the Indenture. Under
certain circumstances, the Holders of a majority in principal amount of the
Series A Notes then outstanding may rescind any such acceleration with respect
to the Series A Notes and its consequences.
16. No Recourse Against Others.
No director, officer, employee, incorporator or member of
Iridium, as such, will have any liability for any obligations of the Note
Issuers or any Guarantor Subsidiary under the Series A Notes or the Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each holder of Series A Notes
109
7
by accepting a Series A Note waives and releases all such liability (such
waiver will not constitute a waiver of liabilities under the Federal securities
laws, however, if it is the view of the SEC that such a waiver would be against
public policy).
17. Registration Rights.
Pursuant to the Exchange and Registration Rights Agreement,
the Issuers will be obligated upon the occurrence of certain events to
consummate an exchange offer pursuant to which the holders of Series A Notes
shall, subject to certain limitations, have the right to exchange Initial
Series A Notes for the Exchange Series A Notes or Private Exchange Series A
Notes, which will be registered under the Securities Act, in like principal
amount and having terms identical in all material respects as the Series A
Notes. The Holders shall be entitled to receive certain liquidated damages in
the event such exchange offer is not consummated and upon certain other
conditions, all pursuant to and in accordance with the terms of the Exchange
and Registration Rights Agreement.
18. Trustee Dealings with the Note Issuers
Subject to certain limitations imposed by the Act, the
Trustee under the Indenture, in its individual or any other capacity, may
become the owner or pledgee of Series A Notes and may otherwise deal with and
collect obligations owed to it by the Note Issuers or its Affiliates and may
otherwise deal with the Note Issuers or its Affiliates with the same rights it
would have if it were not Trustee.
19. Governing Law
THE SERIES A NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
20. Authentication
This Series A Note shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent) manually signs the
certificate of authentication on the other side of this Series A Note.
21. Abbreviations
Customary abbreviations may be used in the name of a Holder
or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
22. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Note Issuers have caused CUSIP
numbers to be printed on the Series A Notes and has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Series A Notes or as contained in any notice of redemption and reliance may
be placed only on the other identification numbers placed thereon.
110
8
THE NOTE ISSUERS WILL FURNISH TO ANY HOLDER UPON WRITTEN
REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH HAS IN
IT THE TEXT OF THIS SERIES A NOTE IN LARGER TYPE. REQUESTS MAY BE MADE TO:
IRIDIUM LLC
1575 EYE STREET, N.W.
WASHINGTON, DC 20005
ATTENTION: GENERAL COUNSEL
111
9
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Series A Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to
transfer this Series A Note on the books of the Note Issuers. The agent may
substitute another to act for him.
- ------------------------------------
Date: Your Signature:
------------------- ----------------------
Signature Guarantee:
--------------------------------------
(Signature must be guaranteed by a
participant in a recognized signature
guarantee medallion program)
- ----------------------------------
Sign exactly as your name appears on the other side of this Security.
112
10
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SERIES A NOTE(1)
The following increases or decreases in this Global Series A
Note have been made:
Principal amount
Amount of decrease Amount of increase of this Global Signature of
in Principal in Principal Series A Note authorized officer
Date of Amount of this Amount of this following such of Trustee or
Exchange Global Series A Note Global Series A Note decrease or increase Series A Notes Custodian
- -------- -------------------- -------------------- -------------------- ------------------------
- --------
(1) This Schedule should only be added if the Security is issued in global
form.
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11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Series A Note purchased by
the Note Issuers pursuant to Section 4.06 or 4.08 of the Indenture, check the
box:
[ ]
If you want to elect to have only part of this Series A Note
purchased by the Note Issuers pursuant to Section 4.06 or 4.08 of the
Indenture, state the amount: $
Date: Your Signature:
---------- ---------------------------
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:
-----------------------------
(Signature must be guaranteed by a
participant in a recognized signature
guarantee medallion program)
114
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED
UPON TERMINATION OF RESTRICTED PERIOD
Iridium LLC
Iridium Capital Corporation
State Street Bank and Trust Company
c/o State Street Bank and Trust Company
Corporate Services Division
4th Floor
2 International Place
Boston, MA 02110
Re: Iridium LLC and Iridium Capital Corporation (the "Note Issuers")
13% Senior Notes due 2005, Series A (the "Series A Notes")
Ladies and Gentlemen:
This letter relates to Series A Notes represented by a
temporary global note certificate (the "Temporary Certificate"). Pursuant to
Section 2.01 of the Indenture dated as of July 16, 1997 relating to the Series
A Notes (the "Indenture"), the undersigned hereby certifies that (1) the
undersigned is the beneficial owner of $[__________] principal amount of
initial Series A Notes represented by the Temporary Certificate and (2) the
undersigned is a Non-U.S. person (as defined in the Indenture) to whom the
initial Series A Notes could be transferred in accordance with Rule 904 of
Regulation S promulgated under the Securities Act of 1933, as amended.
Accordingly, you are hereby requested to transfer the principal amount of
initial Series A Notes represented by the Temporary Certificate into a
permanent global certificate, all in the manner provided by the Indenture.
You and the Note Issuers are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof
to any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By:
-----------------------
Authorized Signature
115
EXHIBIT D
FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS TO NON-QIB
INSTITUTIONAL ACCREDITED INVESTORS
Transferee Letter of Representation
Iridium LLC
Iridium Capital Corporation
State Street Bank and Trust Company
c/o State Street Bank and Trust Company
Corporate Services Division
4th Floor
2 International Place
Boston, MA 02110
Ladies and Gentlemen:
Reference is hereby made to the Indenture dated as of July
16, 1997 in regard of the 13% Senior Notes due 2005, Series A (the "Series A
Notes") among Iridium LLC and Iridium Capital Corporation, as joint and several
obligors (the "Note Issuers"), Iridium Roaming LLC and Iridium IP LLC (the
"Initial Guarantors," and together with the Note Issuers, the "Issuers") and
State Street Bank and Trust Company as Trustee. Capitalized terms used but not
defined herein will have the meaning given them in the Indenture.
This certificate is delivered to request a transfer of
$[__________] principal amount of the Series A Notes.
Upon transfer, the Series A Notes would be registered in the
name of the new beneficial owner as follows:
Name:
------------------------
Address:
---------------------
Taxpayer ID Number:
-------------------------
The undersigned represents and warrants to you that:
1. The undersigned is an institutional "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of
1933, as amended (the "Securities Act")) purchasing for its own account or for
the account of such an institutional "accredited investor" Series A Notes in a
transaction exempt from the registration requirements of the Securities Act.
The undersigned has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risk of its investment in
the Series A Notes and invests in or purchase securities similar to the Series
A Notes in the normal course of our business. The undersigned and any accounts
for which it is acting are each able to bear the economic risk of its
investment.
2. The undersigned understands that the Series A Notes have
not been registered under the Securities Act and, unless so registered, may not
be sold except as permitted in the following sentence. The
116
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undersigned agrees on its own behalf and on behalf of any investor account for
which it is purchasing Series A Notes to offer, sell or otherwise transfer such
Series A Notes prior to the date which is two years after the later of the date
of original issue and the last date on which the Issuers or any affiliate of an
Issuer was the owner of such Series A Notes (or any predecessor thereto) (the
"Resale Restriction Termination Date") only (a) to the Issuers, (b) pursuant to
a registration statement which has been declared effective under the Securities
Act, (c) in a transaction complying with the requirements of Rule 144A under
the Securities Act, to a person it reasonably believes is a qualified
institutional buyer under Rule 144A (a "QIB") that purchases for its own
account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) pursuant to offshore
transactions meeting the requirements of Rule 903 or Rule 904 under the
Securities Act or (e) to an institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is
purchasing for its own account or for the account of such an institutional
"accredited investor", in a transaction exempt from the registration
requirements of the Securities Act (if available) or (f) pursuant to any other
available exemption from the registration requirements of the Securities Act
and, in each case (a) through (f), in accordance with all applicable securities
laws of the states of the United States and other jurisdictions. The foregoing
restrictions on resale will not apply subsequent to the Resale Restriction
Termination Date. If any resale or other transfer of the Series A Notes is
proposed to be made pursuant to clause (e) above prior to the Resale
Restriction Termination Date, the transferor shall deliver a letter from the
transferee substantially in the form of this letter to the Issuers and the
Trustee, which shall provide, among other things, that the transferee is an
institutional "accredited investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act and that it is acquiring such Series A
Notes for investment purposes and not for distribution in violation of the
Securities Act. Each purchaser acknowledges that the Issuers and the Trustee
reserve the right prior to any offer, sale or other transfer prior to the
Resale Restriction Termination Date of the Series A Notes pursuant to clause
(d), (e) or (f) above to require the delivery of an opinion of counsel,
certifications and/or other information satisfactory to the Issuers and the
Trustee.
TRANSFEREE:
-----------------------
BY:
-----------------------
117
EXHIBIT E
FORM OF TRANSFER CERTIFICATE FOR
TRANSFER TO RULE 144A GLOBAL SECURITY
BEARING A SECURITIES ACT LEGEND
Iridium LLC and
Iridium Capital Corporation
State Street Bank and Trust Company
c/o State Street Bank and Trust Company
Corporate Services Division
4th Floor
2 International Place
Boston, MA 02110
[date]
Re: Iridium LLC and Iridium Capital Corporation (the "Note Issuers")
13% Senior Notes due 2005, Series A (the "Series A Notes")
Ladies and Gentlemen:
Reference is hereby made to the Indenture dated as of July
16, 1997 in regard of the Series A Notes among the Note Issuers, as joint and
several obligors, Iridium Roaming LLC and Iridium IP LLC (the "Initial
Guarantors," and together with the Note Issuers, the "Issuers") and State
Street Bank and Trust Company as Trustee. Capitalized terms used but not
defined herein will have the meaning given them in the Indenture.
This letter relates to $[______] aggregate principal amount
of the Series A Notes which are held in [the form of a beneficial interest in
the Regulation S Temporary Global Series A Note (CINS No. __________) with the
Depositary in the name of the undersigned] [definitive form].
The undersigned has requested transfer of such Series A Notes
to a Person who will take delivery thereof in the form of a beneficial interest
in the Rule 144A Global Series A Note (CUSIP No. ___________). In connection
with such transfer, the undersigned does hereby confirm that such transfer has
been effected in accordance with the transfer restrictions set forth in the
Indenture and on the Notes and pursuant to and in accordance with Rule 144A
under the U.S. Securities Act of 1933, as amended, and accordingly, the
undersigned represents that:
1. the Series A Notes are being transferred to a transferee
that the undersigned reasonably believes is purchasing the Series A
Notes for its own account or one or more accounts with respect to
which the transferee exercises sole investment discretion; and
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2. the undersigned reasonably believes that transferee and
any such account is a "qualified institutional buyer" within the
meaning of Rule 144A, in a transaction meeting the requirements of
Rule 144A and in accordance with any applicable securities laws of any
state of the United States or any other jurisdiction.
[NAME OF TRANSFEROR]
By:
--------------------------
Name:
Title:
Dated:
-----------------------
119
EXHIBIT F
FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S
[date]
Iridium LLC and
Iridium Capital Corporation
State Street Bank and Trust Company
c/o State Street Bank and Trust Company
Corporate Services Division
4th Floor
2 International Place
Boston, MA 02110
Attention: Corporate Trust Department
Re: Iridium LLC and Iridium Capital Corporation (the "Note
Issuers") 13% Senior Notes due 2005, Series A (the "Series A
Notes")
Ladies and Gentlemen:
Reference is hereby made to the Indenture dated as of July
16, 1997 in regard of the Series A Notes among the Note Issuers, as joint and
several obligors, Iridium Roaming LLC and Iridium IP LLC (the "Initial
Guarantors," and together with the Note Issuers, the "Issuers") and State
Street Bank and Trust Company as Trustee. Capitalized terms used but not
defined herein will have the meaning given them in the Indenture.
In connection with our proposed sale of $[__________]
aggregate principal amount of the Series A Notes, the undersigned confirms that
such sale has been effected pursuant to and in accordance with Regulation S
under the United States Securities Act of 1933, as amended (the "Securities
Act"), and, accordingly, the undersigned represents that:
(1) the offer of the Series A Notes was not made to a person
in the United States;
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or the undersigned and any
person acting on its behalf reasonably believed that the transferee
was outside the United States or (b) the transaction was executed in,
on or through the facilities of a designated off-shore securities
market and neither the undersigned nor any person acting on its behalf
knows that the transaction has been prearranged with a buyer in the
United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
In addition, if the sale is made during the restricted period
and the provisions of Rule 903(c)(2) or Rule 904(c)(1) of Regulation S are
applicable thereto, the undesigned confirms that such sale has been made in
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accordance with the applicable provisions of Rule 903(c)(2) or Rule 904(c)(1),
as the case may be.
You and the Note Issuers are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof
to any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
--------------------
[Name of Transferor]
By:
---------------------------
Authorized Signature
Name:
Title:
Date:
Upon transfer, the Series A Notes should be registered in the name of the new
beneficial owner as follows:
Name:
----------------------------
Address:
-------------------------
Taxpayer ID Number:
--------------
121
EXHIBIT G
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated
as of [ ], among [NEW GUARANTOR SUBSIDIARY] (the "New Guarantor
Subsidiary"), a subsidiary of [IRIDIUM OR CAPITAL] (or its successor),
a ______________________ (the "Note Issuers"), IRIDIUM LLC, a Delaware
limited liability company and IRIDIUM CAPITAL CORPORATION, a Delaware
corporation, on behalf of themselves and the Guarantor Subsidiaries
(the "Existing Guarantor Subsidiaries") under the Indenture referred
to below, and STATE STREET BANK AND TRUST COMPANY, a Massachusetts
bank and trust company, as trustee under the indenture referred to
below (the "Trustee")
W I T N E S S E T H :
WHEREAS Iridium LLC, a Delaware limited liability company and
Iridium Capital Corporation a Delaware corporation, as joint and several
obligors, have heretofore executed and delivered to the Trustee an Indenture
(the "Indenture"), dated as of July 16, 1997, providing for the issuance of an
aggregate principal amount of up to $300,000,000 of 13% Senior Notes due 2005,
Series A (the "Series A Notes") and the Initial Guarantors agreed to guarantee
those obligations;
WHEREAS Section 4.15 of the Indenture provides that under
certain circumstances the Note Issuers is required to cause the New Guarantor
Subsidiary to execute and deliver to the Trustee a supplemental indenture
pursuant to which the New Guarantor Subsidiary shall unconditionally guarantee
all of the Note Issuers' obligations under the Series A Notes pursuant to a
Subsidiary Guaranty on the terms and conditions set forth herein; and
WHEREAS pursuant to Section 9.01 of the Indenture, the
Trustee, the Note Issuers and Existing Guarantor Subsidiaries are authorized to
execute and deliver this Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the New Guarantor Subsidiary, the Note Issuers, the Existing
Guarantor Subsidiaries and the Trustee mutually covenant and agree for the
equal and ratable benefit of the holders of the Series A Notes as follows:
1. Definitions. (a) Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
(b) For all purposes of this Supplemental Indenture, except as
otherwise herein expressly provided or unless the context otherwise requires:
(i) the terms and expressions used herein shall have the same meanings as
corresponding terms and expressions used in the Indenture; and (ii) the words
"herein," "hereof" and "hereby" and other words of similar import used in this
Supplement refer to this Supplement as a whole and not to any particular
section hereof.
2. Agreement to Guarantee. The New Guarantor Subsidiary
hereby agrees, jointly and severally with all other Guarantor Subsidiaries, to
Guarantee the Note Issuers' obligations under the Series A Notes on the terms
and subject to the conditions set forth in Article X of the Indenture and to be
bound by all other applicable provisions of the Indenture.
3. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly
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amended hereby, the Indenture is in all respects ratified and confirmed and all
the terms, conditions and provisions thereof shall remain in full force and
effect. This Supplemental Indenture shall form a part of the Indenture for all
purposes, and every holder of Series A Notes heretofore or hereafter
authenticated and delivered shall be bound hereby.
4. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO
THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
5. Trustee Makes No Representation. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental
Indenture.
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6. Counterparts. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
7. Effect of Headings. The Section headings herein are for
convenience only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR SUBSIDIARY],
By:
------------------------------
Name:
Title:
IRIDIUM LLC, on behalf
of itself and the Existing
Guarantor Subsidiaries,
By:
-------------------------------
Name:
Title:
IRIDIUM CAPITAL CORPORATION
By:
--------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
as Trustee,
By:
--------------------------------
Name:
Title:
124
SCHEDULE I
Support Agreement, dated as of July 15, 1992 between Motorola and
Iridium, as amended.