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EXHIBIT 10.37
(EXHIBIT G TO THE CREDIT AGREEMENT)
MOTOROLA CONSENT
CONSENT AND AGREEMENT dated as of [__________, 199_] among:
MOTOROLA, INC., a Delaware corporation ("Motorola"); IRIDIUM OPERATING LLC, a
Delaware limited liability company ("Iridium"); and THE CHASE MANHATTAN BANK
("Chase"), as administrative agent for the lenders or other financial
institutions or entities party, as lenders, to the Credit Agreement referred to
below (the "Lenders") (in such capacity, together with its successors in such
capacity, the "Administrative Agent"), and as collateral agent for the Lenders
under the Security Documents (in such capacity, together with its successors in
such capacity, the "Collateral Agent").
Iridium, certain lenders (each, a "Lender" and, collectively,
the "Lenders"), the Collateral Agent, Chase Securities Inc. and Barclays
Capital, the investment banking division of Barclays Bank PLC ("Barclays"), as
Global Arrangers (collectively, the "Global Arrangers"), the Administrative
Agent, and Barclays as the Documentation Agent are parties to a certain Credit
Agreement dated as of December 19, 1997 (as amended and modified and in effect
from time to time, the "Credit Agreement"), providing, subject to the terms and
conditions thereof, for loans to be made by the Lenders to Iridium in an
aggregate principal amount not exceeding $1,000,000,000.
To induce the Lenders to enter into the Credit Agreement and
to extend credit thereunder, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Motorola and Iridium
have agreed to enter into this Agreement, and Motorola has agreed to enter into
the Motorola Pledge Agreement, for the benefit of the Agents and the Lenders.
Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions and Other Terms. Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned
thereto in the Credit Agreement. As used herein, the following terms shall have
the following meanings (all terms defined in this Section or in other provisions
of this Agreement to have the same meanings when used in the plural and vice
versa):
"FCC License" means the authorization granted by the FCC in
respect of the construction, launch and operation of the IRIDIUM System, as set
forth in the FCC's Orders and
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Authorizations DA 95-131, released January 31, 1995, DA 95-372, released
February 28, 1995, FCC 96-279, released June 27, 1996, and DA 96-1789, released
October 30, 1996.
"Material Motorola Domestic Subsidiary" means, at any time,
any Motorola Domestic Subsidiary that as of such time meets the definition of a
"significant subsidiary" contained as of the date hereof in Regulation S-X of
the SEC.
"Motorola Assigned Agreements" means, collectively, (a) the
Space System Contract, (b) the Terrestrial Network Development Contract and (c)
the O&M Contract.
"Motorola Domestic Subsidiary" means any Subsidiary of
Motorola, except any such Subsidiary (a) that neither transacts any substantial
business nor regularly maintains any substantial portion of its fixed assets
within the United States of America or (b) which is engaged primarily in
financing operations of Motorola or its Subsidiaries outside the United States
of America.
"Motorola Subordinated Claims" means (a) any claim or right of
Motorola against Iridium or any of its property arising as a result of any
payment by Motorola of any amount under the Motorola Guarantee Agreement,
whether by subrogation, contribution, reimbursement or otherwise, and including
without limitation all obligations owing by Iridium to Motorola under Section 1
of the Agreement Regarding Guarantee and (b) all obligations owing by Iridium to
Motorola in respect of the Motorola Vendor Financing.
"Motorola Vendor Financing" means the FOC Payments (as defined
in the the Memorandum of Understanding dated as of the July 11, 1997 between
Motorola and Iridium LLC as in effect on the date hereof) to the extent that a
deferral thereof is made pursuant to the Section 6 thereof.
"Security Agreement Remedies" mean the remedies of the
Collateral Agent under the Security Agreement.
"Senior Bank Debt" means the following obligations of Iridium:
(a) all principal of the loans outstanding under the Senior
Credit Agreement, all interest thereon (including any interest accruing
after the date of any filing by Iridium of any petition in bankruptcy
or the commencing of any bankruptcy, insolvency or similar proceedings
with respect to Iridium whether or not the same is allowed as a claim
in any such proceeding) and all other amounts outstanding under the
Senior Credit Agreement and the other Senior Credit Documents,
including, without limitation, all expenses, indemnities, premiums,
penalties and fees payable by Iridium from time to time thereunder;
Motorola Consent
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(b) all obligations of Iridium owing from time to time to any
holder of Senior Bank Debt of the type described in clause (a) above,
or any refinancing, replacement or refunding thereof permitted under
clause (c) below, in respect of any Hedging Agreement entered into
between Iridium and such holder; and
(c) any and all refinancings, replacements or refundings of
any or all of the foregoing amounts effected through one or more
secured credit facilities having a maturity not later than July 15,
2005 and (together with all other secured debt of Iridium) not
exceeding $1,700,000,000 in aggregate principal amount.
"Senior Bank Debt Representative" means (a) the Administrative
Agent from time to time under the Credit Agreement (which, as of the date
hereof, is Chase) and (b) at any time following the refinancing, replacement or
refunding of the Credit Agreement, the entity acting in the capacity as
administrative agent for the lenders (or exercising the equivalent functions)
under such refinancing, replacement or refunding.
"Senior Credit Agreement" means the Credit Agreement, and/or
any refinancing, refunding, extension or renewal thereof, whether in whole or
part and whether or not with any of the lenders then party to the outstanding
Senior Credit Agreement, in each case as amended or modified and in effect from
time to time.
"Senior Credit Documents" means the Senior Credit Agreement
and any and all guarantees, security agreements, pledge agreements, mortgages,
and other instruments and agreements providing for or evidencing Senior Bank
Debt, in each case as modified or supplemented and in effect from time to time.
"Space Segment" has the definition provided in the Space
System Contract.
"Subsidiary" means, with respect to any Person, any
corporation, partnership, limited liability company or other entity of which at
least a majority of the securities or other ownership interests having by the
terms thereof ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions of such corporation,
partnership, limited liability company or other entity (irrespective of whether
or not at the time securities or other ownership interests of any other class or
classes of such corporation, partnership, limited liability company or other
entity shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned or controlled by such
Person or one or more Subsidiaries of such Person or by such Person and one or
more Subsidiaries of such Person.
SECTION 1.02. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require,
Motorola Consent
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any pronoun shall include the corresponding masculine, feminine and neuter
forms. The words "include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation". The word "will" shall be construed
to have the same meaning and effect as the word "shall". Unless the context
requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified, including an amendment and restatement
thereof, but subject to any restrictions on such amendments, supplements or
modifications set forth herein, (b) any reference herein to any Person shall be
construed to include such Person's successors and assigns or, in the case of any
Governmental Authority, any successor or other entity that performs equivalent
functions in whole or in part, (c) the words "herein", "hereof" and "hereunder",
and words of similar import, shall be construed to refer to this Agreement in
its entirety and not to any particular provision hereof, (d) all references
herein to Articles, Sections and Schedules shall be construed to refer to
Articles and Sections of, and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Motorola represents and warrants to the Lenders and the Agents
that:
SECTION 2.01. Corporate Existence. Motorola (a) is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware; (b) has all requisite corporate or other power, and
has all material governmental licenses, authorizations, consents and approvals
necessary, to own its assets and carry on its business as now being or as
proposed to be conducted; and (c) is qualified to do business and is in good
standing in all jurisdictions in which the nature of the business conducted by
it makes such qualification necessary and where failure so to qualify could
reasonably be likely to (either individually or in the aggregate) have a
material adverse effect on the ability of Motorola to perform any of its
obligations under the Credit Documents and the Principal Project Documents to
which it is a party.
SECTION 2.02. Financial Condition.(1) Motorola has heretofore
furnished to each of the Lenders the consolidated balance sheet of Motorola and
its consolidated Subsidiaries as at
(1) This representation is to be updated as appropriate to the date of
execution of this Agreement to refer to the latest available annual
audited and unaudited quarterly consolidated financial statements of
Motorola.
Motorola Consent
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December 31, 1996 and the related statements of consolidated earnings,
stockholders' equity and cash flows of Motorola and its consolidated
Subsidiaries for the fiscal year ended on said date, with the opinion thereon of
KPMG Peat Marwick, and the unaudited consolidated balance sheet of Motorola and
its Subsidiaries as at the end of the [_______] fiscal quarter of Motorola's
1997 fiscal year and the related statements of consolidated earnings,
stockholders' equity and cash flows of Motorola and its consolidated
Subsidiaries for the [______]-month period ended on such date. All such
financial statements present fairly, in all material respects, the financial
condition of Motorola and its consolidated Subsidiaries as at said dates and the
results of their operations for the fiscal year and [six/nine]-month period
ended on said dates (subject, in the case of such financial statements as at the
end of such [________]-month period to normal year-end audit adjustments), all
in conformity with generally accepted accounting principles. Since December 31,
1996, there has been no material adverse change in the consolidated business,
operations or financial condition taken as a whole of Motorola and its
consolidated Subsidiaries from that set forth in said financial statements as at
said date.
SECTION 2.03. Litigation. Except as disclosed in Motorola's
Report on Form 10-K filed with the SEC for the fiscal year ended December 31,
1996 or in Motorola's Reports on Form 10-Q filed with the SEC during 1997 prior
to the date hereof, each of which has been delivered to the Lenders prior to the
date hereof, there are no legal or arbitral proceedings, or any proceedings by
or before any governmental or regulatory authority or agency, now pending or (to
the knowledge of Motorola) threatened against Motorola or any of the Material
Motorola Domestic Subsidiaries which if adversely determined, (either
individually or in the aggregate) could reasonably be likely to have a material
adverse effect on the ability of Motorola to perform any of its obligations
under the Credit Documents and the Principal Project Documents to which it is a
party.
SECTION 2.04. No Breach. None of the execution and delivery of
any of the Motorola Agreements, the consummation of the transactions
contemplated thereby or compliance with the terms and provisions thereof will
conflict with or result in a breach of, or require any consent under, the
charter or by-laws of Motorola, or any applicable law or regulation or any
order, writ, judgment, decree, determination or award having applicability to
Motorola or any of its Subsidiaries, or any agreement or instrument to which
Motorola or any of the Material Motorola Domestic Subsidiaries is a party, or by
which any of them or any of their respective property is bound or to which any
of them is subject, or constitute a default under any such agreement or
instrument.
SECTION 2.05. Action. Motorola has all necessary corporate
power, authority and legal right to execute, deliver and perform each of its
obligations under the Motorola Agreements and the Motorola Assigned Agreements.
The execution, delivery and performance by Motorola of each of the Motorola
Agreements and the Motorola Assigned Agreements, and the consummation of the
transactions contemplated thereby, have been duly authorized by all
Motorola Consent
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necessary corporate action on its part. Each of the Motorola Agreements and the
Motorola Assigned Agreements has been duly and validly executed and delivered by
Motorola and constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its respective terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws of general applicability affecting the enforcement of
creditors' rights.
SECTION 2.06. Approvals. No authorizations, approvals or
consents of, and no filings or registrations with, any governmental or
regulatory authority or agency, any securities exchange or any other Person are
necessary for the execution, delivery or performance by Motorola of any of the
Motorola Agreements or the Motorola Assigned Agreements or for the legality,
validity or enforceability hereof or thereof, except that the exercise of
remedies under the Motorola Pledge Agreement may require prior approval of the
FCC.
SECTION 2.07. Motorola Assigned Agreements. As of the date
hereof, Motorola is not in default under any of its material covenants or
obligations under the Motorola Assigned Agreements and each of the Motorola
Assigned Agreements is in full force and effect. Iridium or Motorola has
furnished to the Administrative Agent true and complete copies of each of the
Motorola Assigned Agreements as in effect on the date hereof. As of the date
hereof, no event or condition exists which would either immediately or with the
passage of any applicable grace period or giving of notice, or both, enable
Motorola to terminate, or suspend performance of its obligations under, any of
the Motorola Assigned Agreements.
SECTION 2.08 No Motorola Default. No Motorola Default has
occurred and is continuing.
SECTION 2.09 FCC License. The FCC License is validly issued,
as of the date hereof in the name of [________________________](2), a Delaware
corporation and a wholly owned Subsidiary of Motorola, and the FCC License will,
at all times prior to the transfer thereof to Iridium pursuant to the Space
System Contract, be held by a wholly owned Subsidiary of Motorola. Except as
described in Schedule 1, the FCC License is a final and non-appealable order of
the FCC and in full force and effect, and Motorola is in compliance with all
material terms and conditions applicable to, or set forth in, the FCC License
and with all material provisions of any Government Rule applicable thereto.
Except (i) in connection with any of the gateways in which Motorola is an
investor, (ii) the tracking, telemetry and command stations and (iii) otherwise
as described in Schedule 1, Motorola is not responsible for obtaining any other
Telecommunications Approval in connection with the Development of the Project.
Except as set forth in Schedule 1, there is not now pending or, to the knowledge
of Motorola, threatened any
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2 Insert name of FCC License holder as of the date of this Agreement.
Motorola Consent
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petition, complaint, objection (whether formal or informal), investigation, or
any other proceeding before the FCC or any other Government Authority of
competent jurisdiction relating to the FCC License or the IRIDIUM System.
ARTICLE III
CONSENT AND AGREEMENT
Motorola hereby acknowledges and agrees:
SECTION 3.01. Motorola hereby acknowledges notice and receipt
of the Security Agreement and consents to the assignment by Iridium of all its
rights in and under each of the Motorola Assigned Agreements pursuant to the
Security Agreement and any and all moneys payable by Motorola to Iridium under
any of the Motorola Assigned Agreements.
SECTION 3.02. In connection with any exercise by the
Collateral Agent of the Security Agreement Remedies, the Collateral Agent shall
be entitled to exercise any and all rights of Iridium under each of the Motorola
Assigned Agreements in accordance with their respective terms, and Motorola
shall comply in all respects with such exercise. Without limiting the foregoing,
in connection with the exercise by the Collateral Agent of the Security
Agreement Remedies, the Collateral Agent shall have the full right and power to
enforce directly against Motorola all obligations of Motorola owing to Iridium
under each Motorola Assigned Agreement and otherwise to exercise all remedies of
Iridium thereunder and to make all demands and give all notices and make all
requests required or permitted to be made by Iridium under each Motorola
Assigned Agreement. The Collateral Agent shall have the right, but not the
obligation, to cure all defaults of Iridium and to pay all sums owing by Iridium
under any Motorola Assigned Agreement in accordance with this Agreement.
SECTION 3.03. Motorola will not, without the prior written
consent of the Collateral Agent, (i) cancel or terminate, or suspend performance
under, or exercise any right to consent to or accept any cancellation,
termination or suspension of, any Motorola Assigned Agreement, unless prior
thereto Motorola shall have delivered to the Collateral Agent written notice
stating that it intends to take such action on a date not less than 30 days
after the date of such notice, specifying the nature of the default or other
event under such Motorola Assigned Agreement entitling Motorola to take such
action (and, in the case of a payment default by Iridium, specifying the amount
thereof) and permitting the Collateral Agent to cure such payment default by
making a payment equal to the amount in default or by performing or causing to
be performed any other obligation in default, (ii) transfer, sell, assign,
delegate or otherwise dispose of any part of its interests in any of the
Motorola Assigned Agreement, or (iii) petition, request or take any other legal
or administrative action which seeks, or may reasonably be expected, to rescind,
terminate or suspend or amend or modify any Motorola Assigned Agreement or any
part
Motorola Consent
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thereof. In furtherance of clause (i) of the immediately preceding sentence,
Motorola agrees that, notwithstanding anything contained in any Motorola
Assigned Agreement to the contrary, upon the occurrence of a default by Iridium
under such Motorola Assigned Agreement entitling Motorola to cancel or terminate
such Motorola Assigned Agreement or to suspend performance thereunder, Motorola
will not take any action to cancel or terminate, or suspend performance under,
such Motorola Assigned Agreement if, within a 30-day period after the date on
which the Collateral Agent shall have received notice of such default from
Motorola, the Collateral Agent commences steps to cure such default and/or
otherwise to institute enforcement proceedings to acquire Iridium's interest in
such Motorola Assigned Agreement or the Project and thereafter the Collateral
Agent diligently pursues such steps or proceedings and all payment defaults of
Iridium under such Motorola Assigned Agreement have been cured within such
30-day period. Effective upon any transfer of Iridium's interest in such
Motorola Assigned Agreement to any other Person, Motorola will grant the
relevant transferee a reasonable period of time to cure such default (but, in no
event with respect to any payment default, exceeding a maximum of 30 days after
receipt of notice of such payment default by the Collateral Agent, as
contemplated above). Except as provided in Section 3.05, no curing or attempt to
cure any of Iridium's defaults under any Motorola Assigned Agreement shall be
construed as an assumption by the Collateral Agent or any other Secured Party of
any covenants, agreements or obligations of Iridium under such Motorola Assigned
Agreement and neither the Collateral Agent nor any other Secured Party shall
have any obligation to Motorola for the performance of any obligation under any
Motorola Assigned Agreement. In connection with any cure pursuant to this
Section of Iridium's default(s) under any Motorola Assigned Agreement or any
assumption by any Person of Iridium's liabilities thereunder, only those
obligations and liabilities arising expressly under such Motorola Assigned
Agreement shall be required to be cured or assumed, as the case may be.
Notwithstanding anything in this Agreement to the contrary, no provision of this
Agreement shall be intended to restrict in any way any merger or consolidation
to which Motorola is a party or the sale of all or substantially all of the
assets of Motorola and its Subsidiaries, provided that, in connection with any
such transaction if Motorola is not the surviving entity of such transaction,
the surviving entity or purchaser, as the case may be, expressly assumes in
writing the obligations of Motorola under the Motorola Assigned Agreements and
the Motorola Agreements, as applicable.
SECTION 3.04. Motorola shall deliver to the Administrative
Agent at the address provided for in Section 11.01 of the Credit Agreement, or
at such other address as the Administrative Agent may designate in writing from
time to time to Motorola, promptly following the delivery thereof to Iridium, a
copy of each notice from Motorola to Iridium under any Motorola Assigned
Agreement of default, termination, arbitration, force majeure or any event
giving rise to a right to terminate or cancel such Motorola Assigned Agreement
or suspend performance thereunder or of any indemnity payment to be made by
Iridium which is in an amount of at least $2,000,000. Promptly following its
receipt thereof, Motorola will deliver to the Administrative Agent at the
address specified above a copy of each notice from Iridium to Motorola under any
Motorola Assigned Agreement of default, termination, arbitration or force
Motorola Consent
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majeure or of any indemnity payment to be made by Motorola which is in an amount
of at least $2,000,000. Notwithstanding anything herein to the contrary,
Motorola shall not be liable for any failure to provide, or delay in providing,
any notice or other information to the Collateral Agent under this Section 3.04.
SECTION 3.05. Motorola agrees that, in connection with the
exercise by the Collateral Agent of the Security Agreement Remedies with respect
to any Motorola Assigned Agreement, Motorola shall recognize the Collateral
Agent as Iridium for purposes of such Motorola Assigned Agreement in accordance
with this Agreement. In the event that the Collateral Agent succeeds to
Iridium's interests under any Motorola Assigned Agreement in accordance with the
Security Agreement, the Collateral Agent shall assume liability for all of
Iridium's obligations under such Motorola Assigned Agreement, provided, however,
that such liability shall not include any liability for claims of Motorola
against Iridium arising from Iridium's failure to perform during the period
prior to the Collateral Agent's succession to Iridium's interests under such
Motorola Assigned Agreement other than the payments obligations of Iridium
expressly provided for in such Motorola Assigned Agreement. Except as otherwise
set forth in the immediately preceding sentence, none of the Secured Parties
shall be liable for the performance or observance or any of the obligations or
duties of Iridium under any of the Motorola Assigned Agreements, nor shall the
assignment of the Motorola Assigned Agreements by Iridium to the Collateral
Agent pursuant to the Security Agreement give rise to any duties or obligations
whatsoever on the part of any of the Secured Parties owing to Motorola. If the
Collateral Agent succeeds to Iridium's interests under any Motorola Assigned
Agreement pursuant to the Security Agreement, Motorola and the Collateral Agent
shall negotiate in good faith an equitable adjustment to the milestone and/or
scheduled completion dates and/or the prices or amounts payable thereunder to
compensate Motorola for any additional costs reasonably and necessarily incurred
by Motorola following the failure of Iridium to perform its obligations that
resulted in the enforcement by the Collateral Agent of the Security Agreement
Remedies until the date on which the Collateral Agent shall have assumed the
obligations of Iridium under such Motorola Assigned Agreement. Notwithstanding
the foregoing, Motorola shall not be relieved of its obligations to perform
under any Motorola Assigned Agreement as a result of the parties' failure to
agree upon an equitable adjustment to the milestone and/or scheduled completion
dates and/or the prices or amounts payable thereunder and such failure shall be
subject to resolution in accordance with the dispute resolution procedures set
forth in such Motorola Assigned Agreement.
SECTION 3.06. In the event that (i) any Motorola Assigned
Agreement is rejected by a trustee, liquidator, debtor-in-possession or similar
entity or person in any bankruptcy, insolvency or other similar proceeding
involving Iridium or (ii) any Motorola Assigned Agreement is terminated as a
result of any bankruptcy, insolvency or similar proceeding involving Iridium
and, if within 90 days after such rejection, the Collateral Agent shall so
request and shall certify in writing to Motorola that it intends to perform the
obligations of Iridium as and
Motorola Consent
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to the extent required under such Motorola Assigned Agreement (as if it had not
been rejected or terminated, but otherwise only to the extent such obligations
would be undertaken had such person or entity succeeded to Iridium thereunder
pursuant to Section 3.07), Motorola will execute and deliver to the Collateral
Agent a new agreement amending or replacing the original affected Motorola
Assigned Agreement which shall be for the balance of the remaining term under
such affected Motorola Assigned Agreement before giving effect to such rejection
or termination and shall contain the same conditions, agreements, terms,
provisions and limitations as such affected Motorola Assigned Agreement (except
for any requirements which have been fulfilled by Iridium and Motorola prior to
such rejection or termination or which are not required to be undertaken by such
person or entity). If the Collateral Agent and Motorola enter into such a new
agreement in accordance with this Section, Motorola and the Collateral Agent
shall negotiate in good faith an equitable adjustment to the milestone and/or
scheduled completion dates and/or the prices or amounts payable thereunder to
compensate Motorola for any additional costs reasonably and necessarily incurred
by Motorola during the period from and including the date such bankruptcy,
insolvency or similar proceeding was commenced to and including the date on
which the Collateral Agent shall certify in writing that it intends to perform
the obligations of Iridium with respect to such new agreement. Notwithstanding
the foregoing provisions, Motorola shall not be relieved of its obligations to
perform under such new agreement as result of the parties' failure to agree upon
an equitable adjustment to the milestone and/or scheduled completion dates and
such failure shall be subject to resolution in accordance with the disputes
resolution procedures set forth therein. References in this Agreement to a
"Motorola Assigned Agreement" shall be deemed also to refer to the new Motorola
Assigned Agreement in replacement thereof.
SECTION 3.07. In connection with the exercise by the
Collateral Agent of the Security Agreement Remedies, the Collateral Agent may
assign its rights and interests and the rights and interests of Iridium under
any or all of the Motorola Assigned Agreements to any other Person, provided
that such Person shall assume all of the obligations of Iridium under such
Motorola Assigned Agreement(s) and shall have obtained all Government Approvals
(if any) necessary to perform such obligations. Upon such assignment and
assumption, the Collateral Agent shall be relieved of all obligations (if any)
under such Motorola Assigned Agreement(s) arising after such assignment and
assumption. In the event that the Collateral Agent or its designee or any
transferee of the interests of the Collateral Agent in any or all of the
Motorola Assigned Agreements or otherwise in respect of the Project shall assume
or be liable under any of the Motorola Assigned Agreements (as contemplated in
Section 3.05 or 3.06), liability in respect of any and all obligations of any
such party under such Motorola Assigned Agreement shall be limited solely to
such party's interest in the Project (and any officer, director, employee,
shareholder or agent thereof shall have no liability with respect thereto).
Motorola Consent
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ARTICLE IV
SPECIAL AGREEMENTS RELATING TO MOTOROLA ASSIGNED AGREEMENTS
Motorola hereby further acknowledges and agrees that, prior to
the transfer of the FCC License to Iridium:
SECTION 4.01. FCC License.
(a) Without limiting the provisions of Section 3, Motorola
consents to the assignment by Iridium to the Collateral Agent of all of its
rights in and to the Space System Contract pursuant to the Security Agreement,
including, without limitation, the right of Iridium under Section 18.H of the
Space System Contract to require, subject to certain conditions set forth
therein, the transfer of the FCC License to Iridium (or a Subsidiary of Iridium
designated for that purpose) by Motorola. Iridium agrees to request a transfer
of the FCC License pursuant to said Section 18.H at the earliest time as Iridium
reasonably believes that it can satisfy the qualifications of an FCC licensee
under applicable law and FCC regulations and policies. Motorola agrees that (i)
if Iridium fails to so request a transfer (or send a notice to the Collateral
Agent stating that it believes the conditions to such request have not been
satisfied within 30 days after notice from the Collateral Agent to Iridium and
Motorola requesting Iridium to request such a transfer) or (ii) an Event of
Default shall have occurred and be continuing, the Collateral Agent shall be
entitled to enforce the rights of Iridium under said Section 18.H in accordance
with its terms and, in that connection, may request such transfer or may direct
Iridium to request such transfer, subject to the FCC approval to be jointly
applied for by the parties. Motorola agrees to comply as promptly as practicable
with any such request under said Section 18.H, whether made by Iridium or (as
authorized by this paragraph) the Collateral Agent, provided that the conditions
to such transfer set forth in said Section 18.H have been satisfied. Without
limiting the foregoing, in the event that, as a result of the exercise by the
Collateral Agent of the Security Agreement Remedies, Iridium's interest in the
Space System Contract is (or is to be) transferred to another Person, Motorola
agrees to comply with its obligation under such Section 18.H with respect to the
transfer of the FCC License and, if directed by the Collateral Agent or such
Person, to use all reasonable efforts to apply to the FCC for consent to
transfer the FCC License to such Person, subject to satisfaction of all of the
conditions set forth in said Section 18.H (and assuming any such condition
relating to Iridium shall be complied with by such Person). To the extent
Motorola is not obligated under the Space System Contract to pay for the costs
and expenses associated with any such transfer, Iridium will pay such costs and
expenses.
(b) Motorola will not, and will not permit any of its
Subsidiaries to, sell or otherwise dispose (by whatever means) of, or create or
suffer to exist any Lien on, the FCC License or the capital stock of the
Subsidiary of Motorola which holds the FCC License, nor shall such Subsidiary be
party to any merger or consolidation or take any action to dissolve or liquidate
Motorola Consent
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itself, other than (i) a transfer of the FCC License in accordance with Section
18.H of the Space System Contract and (ii) the creation of the Lien on such
capital stock or the FCC License pursuant to the Motorola Pledge Agreement or
this Agreement. If as of the date of this Agreement the FCC License is held by
Motorola Satellite Communications, Inc. ("MSC") and MSC shall hold assets other
than the FCC License, Motorola agrees, within 45 days thereafter, to cause the
FCC License to be transferred to another wholly-owned Subsidiary of Motorola,
which will not have any other assets or engage in any business or enter into any
transaction, including, without limitation, the incurrence of any liabilities of
any kind whatsoever, other than the holding and ownership of the FCC License and
any activities reasonably incidental thereto and as provided in any Motorola
Assigned Agreement or Motorola Agreement and, within 5 Business Days after such
transfer becomes effective, Motorola or its appropriate Subsidiary will enter
into the Motorola Pledge Agreement for the purpose of pledging the capital stock
of the Subsidiary of Motorola holding the FCC License thereunder and satisfy the
other conditions precedent with respect thereto contemplated by Section 4.01 of
the Credit Agreement. If for any reason such transfer shall not occur by the
expiration of such 45-day period, then Motorola will, or will cause its
appropriate Subsidiary to, enter into the Motorola Pledge Agreement within 5
Business Days thereafter and pledge the capital stock of MSC thereunder, and
thereafter if at any time the FCC License is transferred to another Subsidiary
of Motorola such pledge of MSC stock shall be released and the capital stock of
the Subsidiary then holding the FCC License shall be pledged pursuant to the
Motorola Pledge Agreement (as may be required to be amended to give effect to
the purposes of this Section, as reasonably requested by the Collateral Agent).
Iridium will be responsible for all costs and expenses associated with the
perfection of the security interests under the Motorola Pledge Agreement.
(c) Motorola agrees that it will not take any action or omit
to take any action that could reasonably be expected to result in the material
Impairment of the FCC License, unless such action or inaction would not violate
its obligations with respect to the FCC License under Article 18 of the Space
System Contract.
(d) If there shall be a change in law, or the rules or
policies of the FCC which would permit the granting of a security interest in
the FCC License after the date hereof, upon the request of the Collateral Agent
(and at the expense of Iridium), Motorola will, and will cause the Subsidiary of
Motorola which holds the FCC License to, execute and deliver all such
instruments and documents, and to take such other actions, as shall be necessary
or appropriate, or that the Collateral Agent may reasonably request, in order to
create a first priority perfected security interest in the FCC License in favor
of the Collateral Agent for the benefit of the Secured Parties.
Motorola Consent
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SECTION 4.02. Intellectual Property Rights.
(a) Motorola acknowledges that in connection with the
Development of the Project Motorola has granted, and will grant, to Iridium
rights in certain intellectual property owned or held by Motorola and its
Subsidiaries on the terms (but only to the extent) provided in Article 14 of the
Space System Contract and Article 11 of the O&M Contract (collectively, the
"Motorola Intellectual Property"). Without limiting any other provision of this
Agreement (including, without limitation, Section 3), Motorola consents to the
assignment by Iridium to the Collateral Agent of all of Iridium's rights in and
to the Motorola Intellectual Property pursuant to the Security Agreement.
(b) In furtherance of the foregoing, Motorola agrees that (i)
for any period during which the Collateral Agent shall be exercising its
Security Agreement Remedies (including in the event that the Collateral Agent or
any of its designees shall succeed to Iridium's interest in the Space System
Contract and/or the O&M Contract) or (ii) in the event that, as a result of the
exercise by the Collateral Agent of the Security Agreement Remedies, Iridium's
rights in the Space System Contract and/or the O&M Contract are transferred to
another Person, Motorola hereby grants to the Collateral Agent or the relevant
transferee, as the case may be (herein, including any designee, each a
"Licensee") a license to access, use and maintain, and (if deemed by the
relevant Licensee reasonably necessary for the operation of the Space Segment,
to modify and enhance) all Motorola Intellectual Property on the same terms as
are applicable to Iridium (except as otherwise expressly provided herein) or
otherwise on terms reasonably acceptable to Motorola and the relevant Licensee;
provided that (i) no fee, royalty or other amount shall be required to be paid
by any Licensee to Motorola with respect thereto (except as expressly set forth
in the Motorola Assigned Agreements), (ii) any Licensee shall be entitled to use
the Motorola Intellectual Property for so long as such Licensee is operating the
Space Segment, but solely in connection with the operation of the Space Segment
and for no other purpose and (iii) except as set forth herein (including,
without limitation, the last sentence of this paragraph (b)), without the prior
written consent of Motorola, no Licensee shall be permitted to assign, license
or otherwise transfer to any other Person any of its rights in the Motorola
Intellectual Property (and any such assignment, license or transfer in violation
of this clause shall be null and void). Without limiting the foregoing, each
Licensee shall be permitted to sublicense the Motorola Intellectual Property to
any of its respective subcontractors, agents or affiliates, provided that any
such sublicensee shall be subject to the same terms and conditions set forth in
this Section as are applicable to such Licensee.
(c) In the event that at any time after the date hereof other
intellectual property rights (other than the Motorola Intellectual Property)
which are then owned or held by Motorola or any of its Subsidiaries are required
for the operation of the Space Segment, Motorola shall promptly notify the
Collateral Agent or, following a transfer of Iridium's rights in the Space
System Contract and/or the O&M Contract to any other Person, such other Person
and will
Motorola Consent
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license, or cause to be licensed, to the Collateral Agent or such other Person,
as the case may be, such other intellectual property rights on the same terms
and conditions as shall be applicable hereunder to the Motorola Intellectual
Property, and such other intellectual property rights shall be deemed to be
Motorola Intellectual Property for purposes of the agreements contained in this
Section 4.02.
(d) Motorola agrees, solely for the benefit of the Collateral
Agent or any other Licensee, not to assert against the Collateral Agent or any
other Licensee any violation of the terms of any intellectual property rights
(including, without limitation, the Motorola Intellectual Property) now or
hereafter owned or held by Motorola (i) by the Collateral Agent in connection
with its exercise of the Security Agreement Remedies or (ii) by any other
Licensee in connection with its operation and maintenance of the Space Segment,
but only for so long as the license or permitted use under this Section 4.02 is
effective as provided in paragraph (b) above.
(e) Upon the reasonable request of the Collateral Agent in
connection with the exercise of the Security Agreement Remedies or, from and
after the transfer of Iridium's rights in the Space System Contract and/or the
O&M Contract, any other Licensee, Motorola agrees to deliver to the Collateral
Agent or such other Licensee copies of all software documentation required to be
delivered by Motorola under the Motorola Assigned Agreements, subject to the
terms and conditions of the Motorola Assigned Agreements.
(f) Upon exercise of the license granted herein to the
Collateral Agent or any other Licensee, Motorola will provide technical
assistance services and training upon the reasonable request (and at the cost)
of the Collateral Agent in connection with its exercise of the Security
Agreement Remedies or any other Licensee, as the case may be. To the extent any
filing, registration or similar action under applicable Government Rule is
required with respect to the use of the Motorola Intellectual Property by any
Licensee, Motorola agrees to use all reasonable efforts to make all necessary
filings or registration, or to take other similar action, at the cost of Iridium
(at any time prior to the transfer of Iridium's rights in the Space System
Contract to any Licensee) or otherwise at the cost of such Licensee, in order to
provide to such Licensee the full intended benefits of the license granted
herein.
(g) Motorola hereby agrees to indemnify and hold harmless the
Collateral Agent and each other Licensee on the same terms and conditions
(including, without limitation, the same limitations, which shall be applicable
to the Collateral Agent and each other Licensee in the aggregate) (mutatis
mutandis) as set forth in Article 15 of the Space System Contract and Article 12
of the O&M Contract (as if each reference therein to "Buyer" or "Owner" referred
to the Collateral Agent or such other Licensee, as the case may be), provided
that notwithstanding anything herein to the contrary, neither the Collateral
Agent nor any other Licensee shall assume any liability for the obligations of
Iridium under the Space System Contract or the O&M Contract
Motorola Consent
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unless and until such entity shall have expressly assumed any such obligations
in connection with the exercise of the Security Agreement Remedies.
ARTICLE V
OTHER AGREEMENTS
Motorola hereby further acknowledges and agrees that, so long
as this Agreement remains in effect:
SECTION 5.01. Minimum Ownership. Motorola will be at all
times, directly or through a wholly-owned Subsidiary, the record and beneficial
owner of at least 13,266,713 Class 1 Interests of Iridium LLC, free and clear of
any Lien (as such number may be adjusted from time to time by stock splits,
stock dividends, recapitalizations or other similar transactions).
SECTION 5.02. Non-Compete. Motorola will not produce for
itself or others a commercial satellite-based space system of a global
communications system similar to the IRIDIUM System, which satellite-based space
system provides direct coverage to the entire earth and is designed to
principally provide direct voice service to and from hand-held, fully portable
subscriber units no larger than the first-generation IRIDIUM handheld voice
units; provided that: (a) nothing in this Section shall be construed to prohibit
Motorola from producing satellite-based space systems for Iridium or any
successor or related entity; and (b) notwithstanding anything in this Agreement
to the contrary, the agreement of Motorola under this Section shall terminate
and be of no further force and effect upon the earliest to occur of (i) the date
on which this Agreement shall terminate pursuant to Section 7.13, (ii) the date
on which the Space System Contract shall be terminated in accordance with the
terms thereof (but in no event earlier than December 31, 1999) and (iii) July
31, 2003.
SECTION 5.03. Conditions Precedent. In order to satisfy
certain of the conditions precedent specified in Section 4.02 of the Credit
Agreement, Motorola agrees to deliver the documents specified in Section III of
Part B of Appendix 2 to the Credit Agreement.
SECTION 5.04. Payments. Motorola hereby acknowledges and
agrees that all payments to be made by Motorola to Iridium under the Motorola
Assigned Agreements shall be made in lawful money of the United States of
America, directly to the Collateral Agent, for deposit into the Prepayment
Account (details of which account shall be provided in writing to Motorola by
the Collateral Agent) or to such other Person and/or at such other address as
the Collateral Agent may from time to time specify in writing to Motorola, for
application by the Collateral Agent in the manner contemplated by the Depositary
Agreement, and shall be accompanied by a notice from Motorola stating that such
payments are made under the applicable Motorola Assigned Agreement and
identifying the relevant provision thereof which such payment
Motorola Consent
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was made. Iridium hereby irrevocably authorizes and directs Motorola to make
such payments in respect of each Motorola Assigned Agreement as provided above
and the Collateral Agent (to the extent owed any payments under such Motorola
Assigned Agreement by virtue of this Agreement) and Iridium confirms that any
such payment made in the manner herein provided will constitute a valid
discharge of the relevant payment obligations of Motorola under such Motorola
Assigned Agreement, provided that the Collateral Agent shall have no liability
or responsibility hereunder for determining the correctness of the amount of any
payment made or required to be made by Motorola under Motorola Assigned
Agreement. Motorola will not, without the prior written consent of the
Collateral Agent, make any payments to or for the benefit of Iridium under any
of the Motorola Assigned Agreements except in accordance with this Section.
SECTION 5.05. Cooperation with the Independent Technical
Advisor. Subject to the confidentiality requirements set forth in Section 7.12,
Motorola will use all reasonable efforts to cooperate with the Independent
Technical Advisor to provide information, and to allow reasonable access to, and
inspection of, the facilities of Motorola or any of its Subsidiaries used in the
Development of the Project and to allow reasonable access to the relevant senior
representatives of Motorola who are principally involved therewith, for the
purpose of ensuring that the Independent Technical Advisor shall be informed as
to the progress of the completion of the Project and the achievement of the
technical conditions precedent set forth in Appendix A to Appendix 2 of the
Credit Agreement (the "Technical Conditions"). Without limiting the foregoing,
the Company and Motorola agree to hold at least one meeting per calendar month,
at a time and location to be mutually agreed upon by Motorola, Iridium and the
Independent Technical Advisor, which shall be attended by appropriate senior
representatives of Motorola, Iridium and the Independent Technical Advisor for
the primary purpose of providing the Independent Technical Advisor with an
update as to the progress achieved by Motorola since the date of the last such
meeting (the "Relevant Period") in satisfying the Technical Conditions. In
connection with each such meeting Motorola will present to the Independent
Technical Advisor a briefing, in reasonable detail, conducted by representatives
of Motorola who are informed as to the matters covered by the briefing, setting
forth the results of such tests or milestones associated with the Technical
Conditions that are pertinent to the current stage of financing. In connection
with each such briefing Motorola shall provide to the Independent Technical
Advisor a statement in writing identifying the Technical Conditions that, in
Motorola's view, have been completed during the Relevant Period and copies of
test cases and test reports referenced in the briefing. The test reports shall
be accompanied by "pointers" which identify the relevant sections of the report,
including those sections which identify any qualifications or discrepancies (if
any) that have been encountered in performing such tests. Motorola and Iridium
further acknowledge and agree that in order to enable the Independent Technical
Advisor to determine whether or not it is able to provide the verification
contemplated to be provided under the Credit Agreement by the Independent
Technical Advisor with respect to satisfaction of the Technical Conditions, it
may be necessary for the Independent Technical Advisor to witness certain tests
that are reasonably necessary for the validation by the Independent Technical
Advisor of completion of the Technical
Motorola Consent
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Conditions. Motorola and Iridium agree to determine in good faith with the
Independent Technical Advisor which tests will be so witnessed and Motorola will
provide reasonable prior notice as to the time and location of each such test to
the Independent Technical Advisor.
SECTION 5.06. Designees and Transferees. It is acknowledged
and agreed that the Collateral Agent may employ agents and attorneys-in-fact in
exercising the Security Agreement Remedies, and in that connection may designate
another entity to take action on behalf of the Collateral Agent including, but
not limited to, the enforcement of and/or acquisition of Iridium's rights in any
or all of the Motorola Assigned Agreements or otherwise in respect of the
Project. It is further acknowledged and agreed that in connection with the
exercise by the Collateral Agent of the Securities Agreement Remedies, the
Collateral Agent may cause Iridium's rights in any or all of the Motorola
Assigned Agreements (and/or other assets associated with the Project) to be
transferred or assigned to a third party pursuant to the Security Agreement (a
"transferee"). The provisions of this Agreement (including, without limitation,
in Articles III and IV and this Article) are intended to benefit the Collateral
Agent, its agents, attorneys-in-fact and designees (collectively, the
"designees") and each transferee. Accordingly, unless the context otherwise
requires, references to "Collateral Agent" or "Administrative Agent" shall be
deemed to include references to designees and transferees thereof permitted
pursuant to the Security Documents (regardless of whether so expressly provided
herein), and all actions permitted to be taken by the Collateral Agent or the
Administrative Agent, as the case may be, under this Agreement may be taken by
any such designee or transferee, as appropriate.
ARTICLE VI
SUBORDINATION
SECTION 6.01. Agreement to Subordinate. Motorola covenants and
agrees, and Iridium likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Section, the payment of the Motorola
Subordinated Claims is hereby expressly made subordinate and subject in right of
payment to the prior indefeasible payment in full in cash of all Senior Bank
Debt. In further of the foregoing, Motorola and Iridium agree that no payment
shall be made by Iridium, nor accepted by Motorola, on account of the Motorola
Subordinated Claims unless and until all Senior Bank Debt shall have been paid
in full in cash and all commitments of the holders of Senior Bank Debt to make
loans under the Senior Credit Agreement shall have expired or terminated. In the
event that, notwithstanding the foregoing (but subject to Section 6.02 in the
circumstances described therein), Motorola shall have received any payment
prohibited by the foregoing provisions of this Section, then and in such event
such payment shall be held in trust for the holders of the Senior Bank Debt and
paid over or delivered forthwith to the Senior Bank Debt Representative for
application to the Senior Bank Debt remaining unpaid after giving effect to any
concurrent payment of or distribution to or for the holders of Senior Bank Debt.
Motorola Consent
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SECTION 6.02. Bankruptcy, Liquidation, Dissolution, Etc. In
the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to Iridium or to its creditors, as such, or to
its assets, or (b) any liquidation, dissolution or other winding up of Iridium,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of Iridium, then and in any such event:
(i) the holders of Senior Bank Debt shall be entitled to
receive payment in full in cash of all amounts due or to become due on
or in respect of all Senior Bank Debt, before Motorola is entitled to
receive any payment on account of the Motorola Subordinated Claims; and
(ii) any payment or distribution of assets of Iridium of any
kind or character, whether in cash, property or securities, by set-off
or otherwise, to which Motorola would be entitled but for the
provisions of this Agreement, including any such payment or
distribution which may be payable or deliverable by reason of the
payment of any other Indebtedness of Iridium being subordinated to the
payment of the Motorola Subordinated Claims shall be paid by the
liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior
Bank Debt or the Senior Bank Debt Representative or to the trustee or
trustees under any indenture under which any instruments evidencing any
of such Senior Bank Debt may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the Senior Bank Debt
held or represented by each such holder, to the extent necessary to
make payment in full in cash of all Senior Bank Debt remaining unpaid,
after giving effect to any concurrent payment or distribution to or for
the holders of such Senior Bank Debt; and
(iii) in the event that, notwithstanding the foregoing
provisions of this Section, Motorola shall have received any such
payment or distribution of assets of Iridium of any kind or character,
whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the
payment of any other Indebtedness of Iridium being subordinated to the
payment of the Motorola Subordinated Claims before all Senior Bank Debt
is paid in full in cash, then and in such event such payment or
distribution shall be held in trust for the holders of Senior Bank Debt
and paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of Iridium for
application to the payment of all Senior Bank Debt remaining unpaid, to
the extent necessary to pay all Senior Bank Debt in full in cash, after
giving effect to any concurrent payment or distribution to or for the
holders of Senior Bank Debt.
Motorola Consent
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If Motorola shall have failed to file proper claims or proofs
of claim with respect to the Motorola Subordinated Claims in any proceeding of
the type referred to in the first sentence of this Section prior to 30 days
before the expiration of the time to file such claims or proofs of claim,
Motorola hereby appoints and empowers the Senior Bank Debt Representative (i) to
file such claims or proofs of claim and/or (ii) if Motorola shall fail to vote
any such claim at least 15 days prior to the expiration of the time to vote such
claim, to vote such claim; provided that the Senior Bank Debt Representative
shall have no obligation to file and/or vote any such claim. If the Senior Bank
Debt Representative votes any such claim in accordance with the provisions of
this paragraph Motorola shall not be entitled to modify, revoke or withdraw such
vote. Motorola shall execute and deliver, at the expense of the holders of the
Senior Bank Debt, such agreements, instruments and documents as the holders of
the Senior Bank Debt the Senior Bank Debt Representative may reasonably request
to carry out the intent of this paragraph.
SECTION 6.03. Subrogation. Subject to the payment in full in
cash of all Senior Bank Debt and the expiration or termination of the
commitments of the holders of Senior Bank Debt to make extensions of credit
under the Senior Credit Agreement, Motorola shall be subrogated to the rights of
the holders of Senior Bank Debt to receive payments and distributions of cash,
property and securities applicable to the Senior Bank Debt until the Motorola
Subordinated Claims shall be paid in full. For purposes of such subrogation, no
payments or distributions to the holders of Senior Bank Debt of any cash,
property or securities to which Motorola would be entitled except for the
provisions of this Section, and no payments over pursuant to the provisions of
this Section to the holders of Senior Bank Debt by Motorola shall, as among
Iridium, its creditors (other than holders of Senior Bank Debt), and Motorola be
deemed to be a payment or distribution by Iridium to or on account of the Senior
Bank Debt.
SECTION 6.04. Provisions Solely to Define Relative Rights. The
provisions of this Section are and are intended solely for the purpose of
defining the relative rights of Motorola as the holder of the Motorola
Subordinated Claims, on the one hand, and the holders of Senior Bank Debt, on
the other hand. Nothing contained in this Section or elsewhere in this Agreement
is intended to or shall (a) impair, as among Iridium, its creditors (other than
holders of Senior Bank Debt) and Motorola, the obligation of Iridium, which is
absolute and unconditional, to pay to Motorola the Motorola Subordinated Claims
as and when the same shall become due and payable in accordance with their
respective terms, or (b) affect the relative rights against Iridium of Motorola
and creditors of Iridium (other than the holders of Senior Bank Debt).
SECTION 6.05. No Waiver of Subordination Provisions. No right
of any present or future holder of any Senior Bank Debt to enforce subordination
as herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of Iridium or by any act or failure to act, in
good faith, by any such holder, or by any non-compliance by Iridium with the
terms, provisions and covenants of this Agreement, regardless of any knowledge
thereof any such holder may have or be otherwise charged with. Without in any
way limiting the
Motorola Consent
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generality of the foregoing sentence, the holders of Senior Bank Debt may
(except as provided in Section 6.08), at any time and from time to time, without
the consent of or notice to Motorola, without incurring responsibility to
Motorola and without impairing or releasing the subordination provided in this
Section or the obligations hereunder of Motorola to the holders of Senior Bank
Debt, do any one or more of the following:
(i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Senior Bank Debt or any
instrument evidencing the same or any agreement under which Senior Bank
Debt is outstanding;
(ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Bank Debt, or
waive any provision thereof or the occurrence of any default
thereunder;
(iii) release any Person liable in any manner for the
collection of Senior Bank Debt; and
(iv) exercise or refrain from exercising any rights against
Iridium and any other Person.
SECTION 6.06. Limitations on Remedies. Notwithstanding
anything contained herein to the contrary, prior to the payment of all Senior
Bank Debt in full in cash and the expiration or termination of the commitments
of the holders of Senior Bank Debt to make extensions of credit under the Senior
Credit Agreement, Motorola will not ask, demand, claim or sue for payment of, or
take any other action to collect, any of the Motorola Subordinated Claims,
whether by set-off or in any other manner, and, without limiting the foregoing,
Motorola will not (i) initiate any judicial proceeding or action to collect all
or any portion of the Motorola Subordinated Claims or (ii) file or join with
others in filing a petition against Iridium or any of its Subsidiaries under any
bankruptcy or similar law; provided that, notwithstanding the foregoing,
Motorola shall be permitted to commence judicial proceedings against Iridium to
the extent (but only to the extent) necessary to avoid being barred by any
relevant statute of limitations from pursuing any such right or remedy against
Iridium and thereafter shall take only such action in connection with such
proceeding as shall be reasonably necessary to preserve such right or remedy.
Motorola agrees to notify the Administrative Agent of the commencement of any
such proceeding and of any material development in connection therewith.
SECTION 6.07. Covenants Relating to Motorola Subordinated
Claims. Motorola covenants and agrees with the Lenders and the Administrative
Agent that, until the payment and satisfaction in full of the Senior Bank Debt
and the expiration or termination of the Commitments of the Lenders under the
Credit Agreement:
Motorola Consent
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(a) the Motorola Subordinated Claims shall be unsecured
obligations of Iridium (and not of any of Iridium's Subsidiaries), and
Motorola will not ask, demand, take or receive any property of Iridium
or any of its Subsidiaries as security for all or any portion of the
Motorola Subordinated Claims;
(b) Motorola agrees that it does not, and will not, have or
acquire any claim against any Subsidiary of Iridium with respect to any
of the Motorola Subordinated Claims;
(c) Motorola will not, without the prior written consent of
the Administrative Agent, assign or otherwise transfer, in whole or in
part, or encumber any of its rights or obligations in respect of the
Motorola Subordinated Claims (other than in connection with any
transaction permitted under the last sentence of Section 3.03);
(d) Motorola will not, without the prior written consent of
the Administrative Agent, amend or otherwise modify the provisions of
the Motorola Subordinated Claims or any Motorola Guarantee Agreement in
any way which could reasonably be expected to be adverse to the
interests of the holders of Senior Bank Debt under this Agreement.
(e) Motorola will promptly following the request of the
Administrative Agent execute and deliver such further documents and do
such other acts and things as the Administrative Agent or any Lender
may reasonably request from time to time in order to more fully effect
the purposes of this Section.
SECTION 6.08. Modification of the Credit Agreement.
Notwithstanding anything herein or in the Credit Agreement to the contrary, no
amendment or modification to the Credit Agreement or any refinancing thereof
shall be effective as against Motorola for purposes of the subordination
provisions set forth in this Article (and the related definitions) without the
prior written consent thereto by Motorola if such amendment, modification or
refinancing (a) increases the aggregate commitments under the Senior Credit
Agreement to an aggregate amount in excess of $1,700,000,000, (b) alters in any
material respect the types of obligations that constitute Senior Debt, (c)
extends the maturity of the Loans under the Senior Credit Agreement beyond July
15, 2005 or (d) modifies any of the subordination provisions set forth in this
Article.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. No Waiver. No failure on the part of any Agent
or any Lender to exercise, and no course of dealing with respect to, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by
Motorola Consent
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any Agent or any Lender of any right, power or remedy hereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
SECTION 7.02. Notices. All notices, requests, consents and
demands hereunder shall be in writing and telecopied or delivered to the
intended recipient at the "Address for Notices" specified beneath its name on
the signature pages hereof or, as to either party, at such other address as
shall be designated by such party in a notice to the other party. Except as
otherwise provided in this Agreement, all such communications shall be deemed to
have been duly given when transmitted by telecopier or personally delivered or,
in the case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
SECTION 7.03. Expenses. Motorola agrees to reimburse each of
the Lenders and the Agents for all reasonable out-of-pocket costs and expenses
of the Lenders and the Agents (including, without limitation, the reasonable
fees and expenses of legal counsel) in connection with (a) any default by
Motorola in the performance of any of its obligations hereunder and any
enforcement or collection proceeding resulting therefrom, including, without
limitation, all manner of participation in or other involvement with (i)
bankruptcy, insolvency, receivership, foreclosure, winding up or liquidation
proceedings, (ii) judicial or regulatory proceedings and (iii) workout,
restructuring or other negotiations or proceedings (whether or not the workout,
restructuring or transaction contemplated thereby is consummated) and (b) the
enforcement of this Section.
SECTION 7.04. Amendments. The terms of this Agreement may be
amended or modified only by an instrument in writing duly executed by Motorola,
Iridium and the Administrative Agent and the Collateral Agent, and any provision
of this Agreement may be waived by the Administrative Agent acting with the
consent of such Lenders. Any such amendment or waiver shall be binding upon
Motorola, Iridium, each Agent, each Lender and (in the case of any amendment or
waiver relating to Article VI or any related definitions or terms) any other
holder of Senior Bank Debt. Any waiver shall be effective only for the specified
purpose for which it was given.
SECTION 7.05. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the respective successors and assigns
of Motorola, Iridium, the Agents and the Lenders, provided, however, that
Motorola shall not assign or transfer any of its rights or obligations hereunder
without the prior written consent of the Administrative Agent. The agreements of
the parties hereto are solely for the benefit of Motorola, the Agents and the
other Secured Parties, and no person or entity (other than the foregoing parties
and their respective permitted successors and assigns) shall have any rights
hereunder.
Motorola Consent
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SECTION 7.06. Captions. The captions and section headings
appearing herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Agreement.
SECTION 7.07. Counterparts. This Agreement may be executed in
any number of counterparts, all of which taken together shall constitute one and
the same instrument and either of the parties hereto may execute this Agreement
by signing any such counterpart.
SECTION 7.08. Governing Law; Submission to Jurisdiction. This
Agreement shall be governed by, and construed in accordance with, the law of the
State of New York. Motorola hereby submits to the nonexclusive jurisdiction of
the United States District Court for the Southern District of New York and of
the Supreme Court of the State of New York sitting in New York County (including
its Appellate Division), and of any other appellate court in the State of New
York, for the purposes of all legal proceedings arising out of or relating to
this Agreement or the transactions contemplated hereby. Motorola hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
objection that it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum. Motorola
irrevocably consents to the service of any and all process in any such suit,
action or proceeding by mailing of copies of such process to it at its address
provided under Section 7.02. All mailings under this Section shall be by
certified mail, return receipt requested. Nothing in this Agreement will affect
the right of any party to this Agreement to serve process in any other manner
permitted by law.
SECTION 7.09. Waiver of Jury Trial. EACH OF MOTOROLA, IRIDIUM,
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT (IN EACH CASE, ON BEHALF OF
ITSELF AND THE LENDERS) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 7.10. Agents and Attorneys-in-Fact. Each Agent may
employ agents and attorneys-in-fact in connection herewith and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith.
SECTION 7.11. Severability. If any provision hereof is invalid
and unenforceable in any jurisdiction, then, to the fullest extent permitted by
law, (a) the other provisions hereof shall remain in full force and effect in
such jurisdiction and shall be liberally construed in favor of the Agents and
the Lenders in order to carry out the intentions of the parties hereto as nearly
as may
Motorola Consent
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be possible and (b) the invalidity or unenforceability of any provision hereof
in any jurisdiction shall not affect the validity or enforceability of such
provision in any other jurisdiction.
SECTION 7.12. Confidentiality.
(a) Motorola acknowledges that from time to time financial
advisory, investment banking and other services may be offered or provided to
Motorola or one or more of its Subsidiaries (in connection with this Agreement
or otherwise) by any Lender or by one or more subsidiaries or affiliates of such
Lender. Motorola hereby agrees that, in the event any such services are provided
to Motorola or any of its Subsidiaries, each Lender providing such services is
authorized to share any information delivered to such Lender by Motorola and its
Subsidiaries pursuant to the Credit Documents, or in connection with the
decision of such Lender to enter into the Credit Agreement, to any such
subsidiary or affiliate providing such services, provided that any such
subsidiary or affiliate receiving such information agrees to be bound by the
provisions of paragraph (b) of this Section as if it were a Lender hereunder.
Such authorization shall survive the repayment of the Loans and the termination
of the Commitments.
(b) Each Agent agrees on behalf of itself, each Lender and
each Global Arranger (and on behalf of their respective affiliates, directors,
officers, employees and representatives) to restrict dissemination of any
Confidential Information (as defined below) only to those of its directors,
officers, employees and representatives who are involved in the evaluation of
such information, and to use reasonable precautions to keep such information
confidential, in accordance with its customary procedures for handling
confidential information of the same nature and in accordance with safe and
sound banking practices. For purposes of the Credit Documents, "Confidential
Information" shall mean any non-public information supplied to it by Motorola
pursuant to this Agreement or any other Motorola Agreement, that is identified
(in writing, in the case of written information) by Motorola as being
confidential at the time the same is delivered to the Lenders, the Agents or the
Global Arrangers, provided that nothing herein shall limit the disclosure of any
such information by any Lender, any Agent or any Global Arranger (i) after such
information shall have become public (other than through a violation of this
Section by such Lender, any Agent or any Global Arranger), (ii) to the extent
required by statute, rule, regulation or judicial process, (iii) to counsel or
other experts for any of the Lenders, Agents or Global Arrangers, provided that
such counsel or experts shall be bound by the requirements of this paragraph (b)
with respect to any such information, (iv) to bank examiners (or any other
regulatory authority having jurisdiction over any Lender, any Agent or any
Global Arranger), or to auditors or accountants, (v) to any Global Arranger, any
Agent or any Lender (or to any of their respective affiliates, provided that any
such disclosure to any such affiliate shall be made on a "need to know" basis
only for use by such affiliates (and each of its officers, directors and
employees) solely in connection with the transactions contemplated by the Credit
Documents and each such affiliate (and each of its officers, directors and
employees) shall agree (for the benefit of the Company and Motorola) to be bound
to keep such information confidential on the same terms
Motorola Consent
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as set forth in this Section), (vi) in connection with any litigation to which
any one or more of the Lenders, the Global Arrangers or the Agents is a party,
or in connection with the enforcement of rights or remedies hereunder or under
any other Credit Document, provided that the party intending to make such
disclosure shall use reasonable efforts to cooperate with Motorola to reasonably
minimize the extent of any such disclosure or to obtain confidential treatment
of information to be disclosed, (vii) to a subsidiary or affiliate of such
Lender as provided in paragraph (a) of this Section or (viii) to any assignee or
participant (or prospective assignee or participant) so long as such assignee or
participant (or prospective assignee or participant) first executes and delivers
to the respective Lender and Motorola a confidentiality agreement containing
provisions substantially the same as those in this Section; provided, further,
that in no event shall any Lender, any Agent or any Global Arranger be obligated
or required to return any materials furnished by Motorola hereunder or under any
other Motorola Agreement, except to the extent it has agreed to do so in writing
in conjunction with the receipt of such information. The obligations of any
assignee that has executed a confidentiality agreement as provided above shall
be superseded by this Section on the date upon which such assignee becomes a
Lender hereunder pursuant to Section 11.04(b) of the Credit Agreement.
SECTION 7.13. Effective Date; Termination. This Agreement
shall become effective upon the execution and delivery of one or more
counterparts hereof by each of the parties hereto and (except as otherwise
provided in clause (b) of Section 5.02) shall continue in effect until payment
in full of all principal of and interest on the Loans and all other amounts
owing to the Lenders and the Agents under the Credit Agreements and the other
Credit Document and the expiration or termination of the Commitments, whereupon
this Agreement shall terminate. If, at any time, all or part of any payment with
respect to the Loans (or, in the case of Article VI, the Senior Bank Debt)
theretofore made by Iridium or any other Person is rescinded or must otherwise
be returned by the holders thereof for any reason whatsoever (including, without
limitation, the bankruptcy, insolvency, reorganization or similar action
involving Iridium or such other Person), this Agreement (except as otherwise
provided in clause (b) of Section 5.02) shall continue to be effective or be
reinstated, as the case may be, all as though such payment had not been made.
IN WITNESS WHEREOF, the parties hereto have caused this
Consent and Agreement to be duly executed and delivered as of the day and year
first above written.
MOTOROLA, INC.
By ________________________
Title:
Motorola Consent
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Address for Notices:
Motorola, Inc.
Corporate Offices
1303 East Algonquin Road
Schaumburg, Illinois 60196
Attention: Treasurer
Telecopier No.: 847-576-4768
Telephone No.: 847-576-5069
with copies to:
Motorola, Inc.
Corporate Offices
1303 East Algonquin Road
Schaumburg, Illinois 60196
Attention: Corporate Secretary
Telecopier No.: 847-576-2818
Telephone No.: 847-576-5008
and
Motorola, Inc.
425 North Martingdale Road
Schaumburg, Illinois 60173
Attention: Vice President -
Law Department,
Iridium Matters
Telecopier No.: 847-435-3328
Telephone No.: 847-435-3325
Motorola Consent
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IRIDIUM OPERATING LLC
By ________________________
Title:
Motorola Consent
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THE CHASE MANHATTAN BANK,
as Administrative Agent
By ________________________
Title:
THE CHASE MANHATTAN BANK,
as Collateral Agent
By ________________________
Title:
Motorola Consent
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SCHEDULE 1
Governmental Approvals and Proceedings
[to be completed by Motorola]