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EXHIBIT 10.17
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AMENDED AND RESTATED
AGREEMENT REGARDING GUARANTEE
This Amended and Restated Agreement Regarding Guarantee (this
"Agreement") is dated as of July 11, 1997, and amends and restates the
Agreement Regarding Guarantee originally dated as of August 21, 1996 (the
"Original Agreement Regarding Guarantee") between Motorola, Inc., a Delaware
corporation ("Motorola"), and Iridium LLC, a Delaware limited liability company
("Iridium"). Reference is made to that certain Memorandum of Understanding
(the "MOU"), dated as of July 11, 1997, between Motorola and Iridium.
Motorola has entered into a Guarantee Agreement, dated as of
August 21, 1996 (the "Bridge Guarantee Agreement"), pursuant to which Motorola
has guaranteed the payment of up to $750,000,000 of the obligations of Iridium
under that certain Credit Agreement, dated as of August 21, 1996, between
Iridium and the Lenders named therein (the "Bridge Agreement"). The original
Agreement Regarding Guarantee defined certain rights and obligations of the
parties relating to such guarantee and possible additional guarantees by
Motorola. Capitalized terms used and not otherwise defined herein shall have
the meanings defined in the Bridge Agreement.
Iridium plans to enter into a series of amendments to the
Bridge Agreement as described in the MOU (the "Bridge Agreement Amendments") to
amend the terms thereof and to provide for additional financing thereunder.
Subject to the terms of the MOU, Motorola will consent to the
Bridge Agreement Amendments and will enter into corresponding amendments to the
Bridge Guarantee Agreement to facilitate such Bridge Agreement Amendments (the
"Guarantee Agreement Amendments," and together with the Bridge Agreement
Amendments, the "Amendments").
The parties agree as follows:
1. Reimbursement Obligation.
(a) Iridium Default. Other than as set forth under
Section 1(b) below, if any to the extent that any Lenders demand that Motorola
pay, and Motorola does pay, any Guaranteed Amount pursuant to any Guarantee,
Iridium shall, promptly upon receipt
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from Motorola of a written demand for reimbursement, reimburse Motorola for
such Guarantee Payment, plus interest accruing at a rate equal to that which
would be in effect under the Credit Agreement relating to such Guaranteed
Amount, without duplication.
(b) Motorola Default. If a Guarantee Payment is made in
respect of a Guaranteed Amount that has been accelerated or otherwise become
due as a result of a Motorola-Based Default, then (i) Motorola shall assume and
become subject to the obligations of the Lenders under the applicable Credit
Agreement vis-a-vis Iridium (including, without limitation, the obligation to
make loans in the aggregate principal amount of such Lenders' commitments under
such Credit Agreement), (ii) Motorola shall assume and become entitled to the
benefits of the rights of the Lenders under such Credit Agreement vis-a-vis
Iridium (including, without limitation, the right to receive payments in
respect of loans made under such Credit Agreement, upon acceleration or
otherwise), but not including any provisions relating to a Guarantee or any
right or remedy arising as a result of the occurrence of a Motorola-Based
Default, (iii) Iridium shall become obligated to reimburse Motorola for such
Guarantee Payment and to repay any additional amounts for which Iridium may
become indebted to Motorola pursuant to clause (ii) above on the terms and
conditions contained in such Credit Agreement as such Credit Agreement is
modified by clause (ii) above, and (iv) Iridium shall continue to be subject to
the terms and conditions of such Credit Agreement (including, without
limitation, the covenants contained therein), as such Credit Agreement is
modified by clause (ii) above, it being expressly understood that Motorola
shall in such circumstances have the right to accelerate payments under and
otherwise exercise its rights under any such Credit Agreement to the extent set
forth therein as if it were a lender thereunder to the extent that such right
to accelerate or other rights arise from some event or circumstance other than
a Motorola-Based Default or a Guarantee.
(c) Costs and Expenses. Iridium further agrees to
reimburse Motorola for all reasonable out-of-pocket costs and expenses
(including, without limitation, the fees and expenses of legal counsel) in
connection with any enforcement of Iridium's obligations under Section 1(a)
(including, without limitation, any fees and expenses incurred in connection
with any bankruptcy proceedings).
(d) Subordination. The rights of Motorola under this
Section 1 shall be subject to the terms and conditions of any applicable
subordination agreements then in effect executed by Motorola for the benefit of
Iridium creditors.
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2. Compensation to Motorola.
(a) Warrant Compensation. Except as described in Section
2(e), Iridium shall compensate Motorola for incurring the Motorola Exposure by
issuing warrants (the "Warrants") to purchase Class 1 Interests in Iridium
("Shares") to Motorola. The Warrants shall (i) be in substantially the form of
the warrants issued pursuant to the Original Agreement Regarding Guarantee,
(ii) provide for a ten year term and an exercise price of $0.00013 per Class 1
Interest; (iii) become exercisable on March 1, 2001 and (iv) provide for
issuance of Shares that (A) with respect to Shares issued for warrants received
on or prior to the Commercial Activation Date, may be sold without transfer
restrictions (other than transfer restrictions imposed by the LLC Agreement,
the Interest Exchange Agreement and applicable securities law) at any time
after the fifth anniversary of the exercise of the Warrants and (B) with
respect to Shares issued for warrants received after the Commercial Activation
Date, may be sold without transfer restrictions (other than transfer
restrictions imposed by the LLC Agreement, the Interest Exchange Agreement and
applicable law) at any time after the exercise of the Warrants. In addition, in
the event that Motorola earns Warrants with respect to periods beginning after
March 1, 2001, Iridium shall compensate Motorola with Shares issued directly to
Motorola in the amounts described below in lieu of Warrants. On the 45th day
following the end of each calendar quarter during which any Motorola Exposure
was outstanding at any time, Iridium shall issue a certificate to Motorola
evidencing the Warrants or Shares earned by Motorola in respect of the total of
such Motorola Exposure outstanding in such quarter.
(b) Calculation of Warrant Compensation. Motorola shall
earn Warrants or Shares based on the amount and duration of Motorola Exposure.
The number of Warrants or Shares shall be earned according to the following
table, pro rated both (A) for the actual dollar amount of Motorola Exposure
outstanding during each relevant period and (B) for the number of days such
Motorola Exposure was outstanding during such period. The following table
indicates the maximum amount of Warrants or Shares issuable for each full $100
million of Motorola Exposure, assuming such Motorola Exposure was outstanding
during the entire relevant period.
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MOTOROLA EXPOSURE NUMBER OF WARRANTS PER $100 MILLION
OF MOTOROLA EXPOSURE PER YEAR
(Prior to the Commercial Activation Date)
$ 0 -- $ 499,999,999 0/412,500(1)
500,000,000 -- 749,999,999 637,500
750,000,000 -- (or more) 825,000
(AFTER THE COMMERCIAL ACTIVATION DATE)
$ 0 -- $275,000,000 0/412,500(1)
275,000,001 -- 499,999,999 412,500
500,000,000 -- 749,999,999 637,500
750,000,000 -- 849,999,999 825,000
850,000,000 -- 949,999,999 847,500
950,000,000 -- 1,049,999,999 877,500
1,050,000,000 -- (or more) 900,000
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(1) See Section 2(e) below
For example, (A) if there is $750,000,000 of Motorola Exposure outstanding for
a period of one year, which year is prior to the Commercial Activation Date,
Motorola will have earned Warrants relating to 6,187,500 Shares ($750,000,000 /
100,000,000 = 7.5; 7.5* 825,000 = 6,187,500), and (B) if there is $850,000,000
of Motorola Exposure outstanding for a period of two years, one of which years
is prior to the Commercial Activation Date and one of which is after the
Commercial Activation Date, Motorola will have earned Warrants relating to
14,216,250 Shares ($850,000,000 / 100,000,000 = 8.5; 8.5 * 825,000 = 7,012,500;
8.5 * 847,500 = 7,203,750; 7,012,500+7,203,750 = 14,216,250).
(c) Limitations on Warrant Compensation. Prior to the
Commercial Activation Date, Motorola shall not be eligible to earn Warrants
relating to more than (i) 11,250,000 shares with respect to the first
$749,999,999 in Motorola Exposure and (ii) 3,750,000 shares with respect to the
additional $350,000,000 in Motorola Exposure arising out of the Guarantee
Agreement, as amended, in each case subject to antidilution adjustments in
accordance with the terms of the Warrants. Motorola shall earn Warrants on the
entire Motorola Exposure from and after the Commercial Activation Date.
(d) Warrants Issued to Date. The parties acknowledge that
Warrants for 5,475,525 Shares have been earned by Motorola as of July 10, 1997
with respect to outstanding Motorola Exposure and such Warrants apply toward
the limitations set forth in Section 2(c)(i) of this Agreement.
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(e) High Yield Equivalent Compensation. During any period
in which each of the following conditions (the "High Yield Equivalent
Conditions") exists: (i) the Motorola Exposure outstanding shall be $275,000,00
or less; (ii) no other person or party providing guarantees for the support of
Iridium's indebtedness for borrowed money is receiving equity compensation from
Iridium or IWCL in respect of such guarantees; (iii) no mandatory prepayment or
redemption or acceleration of any Senior Notes (as defined in the MOU) has
occurred (except as a result of Motorola's disposition of Class 1 Interests
causing a "change in control" (as defined in the Offering Memorandum) to occur
under the Senior Notes); and (iv) Iridium has complied with the terms of this
Agreement and the MOU, then at Iridium's option, Iridium may pay Motorola cash
and warrant compensation ("High Yield Equivalent Compensation") for the
remaining Motorola Exposure in lieu of issuing additional Warrants pursuant to
Section 2(a) above ("Warrant Compensation"), in an amount equal to (x) the
average daily Motorola Exposure outstanding during any period for which the
High Yield Equivalent Conditions exist multiplied by the difference between (A)
the average daily interest rate actually charged by the Lenders under the
Bridge Agreement (or its equivalent, if the Bridge Agreement is no longer in
effect) for such period and (B) the daily equivalent interest rate under the
Initial Senior Notes (if relevant, using a weighted average of the interest
rates on the separate tranches of Initial Senior Notes; provided that, if the
daily equivalent interest rate in (B) is greater than the average daily
interest rate in (A), such difference between (A) and (B) shall be zero) plus
(y) the average daily Motorola Exposure outstanding during such period
multiplied by the daily equivalent of the warrant compensation payable to
holders of the Initial Senior Notes with respect to such amount (calculated on
a pro rata daily basis from the date of the issuance of the Initial Senior
Notes to the Stated Maturity), in each case multiplied by (z) the number of
days the High Yield Equivalent Conditions exist. Compensation payable during
any semi-annual period during which the High Yield Equivalent Conditions exist
shall be pro-rated between High Yield Equivalent Compensation and Warrant
Compensation based on the number of days the High Yield Equivalent Conditions
existed during such semi-annual period. High Yield Equivalent Compensation
shall be paid semi-annually in arrears within 45 days after the end of each
semi-annual period.
(f) Guarantee Reduction. In connection with any permanent
reduction of the Commitments under the Bridge Agreement, as amended, Iridium
will use its reasonable efforts to cause the Lenders thereunder to amend the
Bridge Agreement Guarantee to provide for a similar reduction in Motorola's
maximum liability thereunder.
(g) Additional Member and Interests. Iridium shall
provide Motorola with the additional Banking and Finance Committee member and
the Series B, Class 2 interests as described in Section 8 of the MOU.
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3. Iridium Representations and Warranties. Iridium
represents and warrants that:
(a) the representations and warranties of Iridium set
forth in Section 7 of the Bridge Agreement were true
and correct as of the date given under the Bridge
Agreement and the representations and warranties
given under any subsequent Credit Agreement will be
true and correct on the date given;
(b) the Certificates of Designation relating to Iridium's
Series B Class 2 interests and Series C Class 2
Interests have been duly adopted by Iridium's Banking
and Financing Committee in the form attached as Annex
J to the Original Agreement Regarding Guarantee and
all other necessary corporate actions have been taken
to duly authorize the issuance to Motorola of the
Series B Class 2 Interests and Series C Class 2
Interests; and
(c) the execution, delivery and performance of this
Agreement, the Warrants, the amendments and the other
agreements and instruments contemplated hereby to
which Iridium is a party, have been duly authorized
by Iridium; this Agreement, the Warrants, such
amendments, such waiver letter and the Certificates
of Designation relating to Iridium's Series B Class 2
Interests and Series C Class 2 Interests and all
other agreements contemplated hereby to which Iridium
is a party each constitutes a valid and binding
obligation of Iridium, enforceable in accordance with
its terms; the execution and delivery by Iridium of
this Agreement, the Warrants, such amendments, such
other agreements and instruments contemplated hereby
to which Iridium is a party, the offering, sale and
issuance of Iridium's Series B Class 2 Interests and
the Warrants hereunder, the issuance of Iridium's
Class 1 interests upon exercise of Warrants and the
fulfillment of and compliance with the respective
terms hereof and thereof by Iridium, do not and shall
not (i) conflict with or result in a breach of the
terms, conditions or provisions of, (ii) constitute
a default under, (iii), except as provided in the
Security Agreement, result in the creation of any
lien, security interest, charge or encumbrance upon
Iridium's or any Subsidiary's equity capital or
assets pursuant to, (iv) give any third party the
right to modify, terminate or accelerate any
obligation under, (v) result in a violation of, or
(vi)
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require any authorization, consent, approval,
exemption or other action by or notice or declaration
to, or filing with, any court or administrative or
governmental body or agency pursuant to, the charter,
limited liability company agreement or bylaws of
Iridium or any Subsidiary, or any law, statute, rule
or regulation to which Iridium or any Subsidiary is
subject, or any agreement, instrument, order,
judgment or decree to which Iridium or any Subsidiary
is subject.
4. Motorola Protection Rights. Iridium will provide
Motorola with written notice at least five full business days (and no more than
ten business days) prior to giving notice to the banks under any Credit
Agreement or any proposed borrowing which is covered by a Guarantee. In
addition, for so long as any Guarantees remain outstanding (unless the High
Yield Equivalent Conditions exist), Iridium shall not without the prior written
approval of Motorola (which may be withheld in the absolute discretion of
Motorola):
(a) subject to the terms of Section 8, sell, lease or
otherwise dispose of, or permit any Subsidiary to
sell, lease or otherwise dispose of, more than 5% of
the consolidated assets of Iridium and its
Subsidiaries (computed on the basis of book value,
determined in accordance with generally accepted
accounting principles consistently applied, or fair
market value, determined by Iridium's board of
directors in its reasonable good faith judgment) in
any transaction or series of related transactions or
sell or permanently dispose of any of its or any
Subsidiary's Intellectual Property Rights (other than
commercially available software designed for
operation on a personal computer or network of
personal computers);
(b) merge or consolidate with any Person or permit any
Subsidiary to merge or consolidate with any Person
(other than a Wholly-Owned Subsidiary);
(c) liquidate, dissolve or effect a recapitalization or
reorganization of Iridium's capital structure in any
form of transaction;
(d) effect a change in the equity capitalization of
Iridium that requires the approval of the holders of
Shares;
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(e) directly or indirectly declare or pay any dividends
or make any distributions upon any of its equity
capital other than distributions to members made
pursuant to Section 3.07(a) of the LLC Agreement with
respect to certain members' U.S. tax liabilities;
(f) directly or indirectly redeem (other than a
redemption of the Series B or C Class 2 Interests of
Iridium pursuant to the LLC Agreement), purchase or
otherwise acquire, or permit any Subsidiary to
redeem, purchase or otherwise acquire, any of
Iridium's or any Subsidiary's capital stock or other
equity securities (including, without limitation,
warrants, options and other rights to acquire such
capital stock or other equity securities) other than
pursuant to the exercise of Iridium's remedies
against any holder of Shares pursuant to the terms of
the LLC Agreement or the 1993 Stock Purchase
Agreement (as defined in the LLC Agreement);
(g) incur any indebtedness for borrowed money other than
indebtedness the amount, terms and conditions
(including without limitations, the subordination
provisions) or which have been approved in advance by
the lenders to the extent required under any Credit
Agreement; or
(h) take any action or permit any circumstances to exist
which is prohibited under the terms of any Credit
Agreement or fail to take any action required to be
taken by it under the terms of any Credit Agreement,
in each case subject to the grace period applicable
to any default created by such action or circumstance
pursuant to such Credit Agreement; provided, however,
that this clause (h) shall not apply to any action or
circumstance that would constitute a Motorola Default
(as defined in the Bridge Agreement).
5. Amendments and Modifications to Credit Agreements.
Iridium shall not enter into any amendment, waiver, supplement or modification
of any Credit Agreement (other than any of the Bridge Agreement Amendments
contemplated by the MOU) without the prior written consent of Motorola, which
consent may be granted or withheld by Motorola in its sole discretion, but
acting in good faith.
6. Use of Proceeds. Iridium will use the proceeds of
the loans made under any Credit Agreement solely (i) to make payments to
Motorola at the times and in
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the amounts required pursuant to the SSC, the TNDC or the O&M Contract, (ii) to
pay fees and expenses payable to the Lenders and agents in connection with such
Credit Agreement and (iii) for general corporate purposes so long as the amount
subject to this clause (iii) does not exceed the amounts budgeted for such
purposes in the budget plans approved by Iridium's board of directors from time
to time.
7. Copies of Information and Notices. Any and all
material information, notices and correspondence provided by or on behalf of
Iridium to any Lender (whether or not required under the applicable Credit
Agreement shall be provided at the same time to Motorola.
8. Asset Drop Down. Motorola consents and agrees that
Iridium may establish a limited liability company Subsidiary at least
ninety-nine percent of the equity of which would be owned by Iridium ("Iridium
Sub") and transfer to Iridium Sub all or substantially all of the assets of
Iridium (the "Asset Drop Down"); provided Iridium Sub shall assume in writing
certain of Iridium's obligations under this Agreement and the Security
Agreement, with Iridium remaining subject to the remainder of such obligations,
all on terms and conditions mutually agreeable to Iridium and Motorola.
9. Referral of Matters to Related Party Contracts
Committee. Iridium acknowledges and agrees that the Contract Committee (as
defined in the LLC Agreement) of Iridium's board of directors has a limited
scope of authority with respect to the relationship between Motorola and
Iridium, and that only those matters specifically required by the LLC Agreement
and matters related to the Amended Guarantee Agreement, other contracts between
Motorola and Iridium and actions or claims by Iridium against Motorola and
other Affiliate Transactions (as defined in the Offering Memorandum) will be
taken to the Contract Committee for approval.
10. Conditions to Motorola's Obligations. The obligations
of Motorola hereunder are subject to the satisfaction of the condition that the
Indemnification Agreement of even date herewith by and between Motorola and
Iridium shall have been executed and delivered by Iridium.
11. Access. Iridium shall permit Motorola to have access
to relevant meetings, documents or other materials, other than Internal
Meetings, Documents and Materials (as defined below), directly relating to the
Guarantees or any Credit Agreement. "Internal Meetings, Documents and
Materials" means meetings between or among executives or employees of IWCL or
Iridium or between or among Iridium or IWCL and their consultants, advisors
and/or counsel; documents or other materials which are prepared in connection
with such meetings; and documents or other materials which are
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circulated solely between or among executives or employees of Iridium or IWCL
or between or among Iridium or IWCL and their consultants, advisors and/or
counsel.
12. Notices under this Agreement. All notices, requests,
demands, claims, and other communications hereunder will be in writing. Any
notice, request, demand, claim or other communication hereunder shall be deemed
duly given (i) when delivered, if personally delivered, (ii) when receipt is
electronically confirmed, if faxed (with hard copy to follow via first class
mail, postage prepaid) or (iii) one day after deposit with a reputable
overnight courier, in each case addressed to the intended recipient as set
forth below:
If to Iridium:
Iridium LLC
1575 Eye Street, NW
Washington, D.C. 20005
Attention: Vice President and Chief Financial Officer and
Vice President - General Counsel
Telecopy #: (202) 842-0006
If to Motorola:
Motorola, Inc.
1303 East Algonquin Road
Schaumburg, Illinois 60196
Attention: Treasurer
Telecopy #: (847) 576-4768
with a copy (which shall not constitute notice) to:
Motorola, Inc.
425 North Martingale Road
Schaumburg, Illinois 60173
Attention: Vice President - Law Department, Iridium Matters
Telecopy #: (847) 435-3328
13. Definitions. The following terms when used in this
Agreement have the following meanings:
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"Commercial Activation Date" means the date of the first "Revenue
Producing Communication Message" as defined in the SSC (excluding subscriber
trials).
"Credit Agreement" means any agreement pursuant to which Iridium
incurs indebtedness for borrowed money which is Guaranteed by Motorola,
including without limitation, the Bridge Agreement, as amended.
"Guarantee" means any guarantee by Motorola of any obligations of
Iridium under any Credit Agreement or any note, agreement or other instrument
executed in connection therewith, including without limitation, the guarantee
set forth in the Amended Guarantee Agreement with respect to the Bridge
Agreement, as amended.
"Guarantee Agreement" means any agreement which evidences any
Guarantee.
"Guarantee Payment" means any payment which is demanded of Motorola by
a Lender pursuant to any Guarantee which is actually paid by Motorola, to the
extent so paid.
"Guaranteed Amount," with respect to any period, means the maximum
amount of Iridium's obligations for which Motorola has provided a Guarantee
during such period (regardless of the actual amount of Iridium's obligations
outstanding to any Lender during such period) together, without duplication,
with any Guarantee Payments which have been made by Motorola but not repaid by
Iridium.
"Lender" means any lender under any Credit Agreement, or any agent or
other authorized representative of any Lender, including without limitation the
Global Arrangers (as defined in the Bridge Agreement, as amended).
"Intellectual Property Rights" means all (i) patents, patent
applications, patent disclosures and inventions, (ii) trademarks, service
marks, trade dress, trade names, logos and corporate names and registrations
and applications for registration thereof together with all of the goodwill
associated therewith, (iii) copyrights (registered or unregistered) and
copyrightable works and registrations and applications for registration
thereof, (iv) mask works and registrations and applications for registration
thereof, (v) computer software, data,
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data bases and documentation thereof, (vi) trade secrets and other confidential
information (including, without limitation, ideas, formulas, compositions,
inventions (whether patentable or unpatentable and whether or not reduced to
practice), know-how, manufacturing and production processes and techniques,
research and development information, drawings, specifications, designs, plans,
proposals, technical data, copyrightable works, financial and marketing plans
and customer and supplier lists and information), (vii) other intellectual
property rights and (viii) copies and tangible embodiments thereof (in whatever
form or medium).
"IWCL" means Iridium World Communications Ltd.
"LLC Agreement" means the limited liability company Agreement of
Iridium LLC dated as of July 19, 1996 as amended as contemplated by this
Agreement.
"Motorola-Based Default" means a default under the Bridge Agreement
which is caused solely and directly by actions taken by Motorola other than:
(A) a default occurring as the result of the ownership percentage
of Motorola and its affiliates falling below the thresholds
set forth in the Bridge Agreement (as amended by the amendment
described in Section 1(c)(iii) of the MOU) unless it falls
below such thresholds as the result of Motorola or an
affiliate disposing of Iridium's voting securities;
(B) any default in existence on or prior to a date on which
Iridium provides a notice of borrowing to the Lenders if
Iridium fails to provide prior notice to Motorola of such
borrowing in the manner prescribed in Section 4 hereof.
In addition, a Motorola-Based Default means a default under the Bridge
Agreement which is caused solely and directly by actions taken by Motorola as a
result of a demand for payment under a Guarantee which has arisen as a result
of a material default by Motorola under (1) the SSC, the TNDC or the O&M
Contract, so long as Iridium has fully complied in all material respects with
its obligations under the SSC, the TNDC and the O&M Contract and Motorola's
default is the primary cause for the default under the applicable Credit
Agreement which has caused such demand for payment, or (2) under any gateway
purchase agreement between Motorola and a gateway purchaser, so long as the
default by Motorola
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thereunder was not excused or caused by any default on the part of the
purchaser thereunder.
"Motorola Exposure" means the Commitments, the Guarantee Payments (to
the extent not repaid by Iridium) and the Vendor Financing Amount.
"Offering Memorandum" means the final offering memorandum, as amended
under Section 2(a) of the MOU, related to the issuance and sale by Iridium of
the Initial Senior Notes.
"O&M Contract" means the Operations and Maintenance Contract effective
July 29, 1993 between Iridium and Motorola, as amended from time to time.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock Iridium, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Senior Notes" has the meaning set forth in the MOU.
"SSC" means the Space System Contract effective July 29, 1993 between
Iridium and Motorola, as amended from time to time.
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association or other business entity, a
majority of the partnership or other similar ownership interest thereof is at
the time owned or controlled, directly or indirectly, by any Person or one or
more Subsidiaries of that Person or a combination thereof. For purposes
hereof, a Person or Persons shall be deemed to have a majority ownership
interest in a limited liability company, partnership, association or other
business entity if such Person or Persons shall be allocated a majority of
limited liability company, partnership, association or other business entity
gains or losses or shall be or control any managing director or general partner
of such limited liability company, partnership, association or other business
entity.
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"TNDC" means the Terrestrial Network Development Contract
effective January 1, 1993 between Iridium and Motorola, as amended
from time to time.
"Vendor Financing Amount" means the total amount (including
interest and expenses) of any vendor financing, including without
limitation, vendor financing contemplated by an amendment to the TNDC
or any other payment deferrals or payments made to, or for the benefit
of, Iridium, provided to Iridium or third parties by Motorola but not
including any vendor financing or payment deferrals under the TNDC
(including Amendment No. 3) in effect on the date hereof, so long as
payment are made under the TNDC when owed.
14. Complete Agreement. This Agreement and the other
agreements and instruments referred to herein embody the complete agreement and
understanding among the parties with respect to the matters addressed herein
and supersede and preempt the Original Agreement Regarding Guarantee and any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any
way.
15. Miscellaneous. This Agreement (a) is made under and
shall be governed by the laws of the State of New York without regard to
principles of conflict of laws, (b) is intended for the benefit of the parties
hereto and is not intended to benefit any other person and no person other than
the parties hereto may rely upon the provisions hereof, (c) may be executed in
counterparts, each of which taken together shall constitute one and the same
instrument, and (d) may be amended or waived only if such amendment or waiver
is in writing and signed by the party against whom it is sought to be enforced.
16. No Third Party Beneficiaries; Limited Rights Against
Motorola. The parties hereto agree that Iridium shall have no rights (apart
from those set forth in this Agreement, the MOU or any other written agreements
between such parties) against Motorola as a result of Iridium's inability to
meet drawing or other conditions under the Secured Bank Facility.
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IN WITNESS WHEREOF, the parties have entered into this
Amended and Restated Agreement Regarding Guarantee in each case as of the date
first above written.
IRIDIUM LLC
By: /s/ EDWARD F. STAIANO
----------------------------
Name: Edward F. Staiano
Title: Chairman and Chief Executive Officer
MOTOROLA, INC.
By: /s/ S. ERHART
----------------------------
Name: Stephen Erhart
Title: