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EXHIBIT 10.20
IRIDIUM LLC
IRIDIUM CAPITAL CORPORATION
$300,000,000 11 1/4% Senior Notes due 2005, Series C
PURCHASE AGREEMENT
October 9, 1997
CHASE SECURITIES INC.
XXXXXXX XXXXX, XXXXXX, XXXXXX
AND XXXXX INCORPORATED
BT ALEX. BROWN INCORPORATED
c/o Chase Securities Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Iridium LLC, a Delaware limited liability company ("Iridium"), and
Iridium Capital Corporation, a Delaware corporation and a wholly owned
subsidiary of Iridium ("Capital" and, together with Iridium, the "Note
Issuers"), propose to issue and sell $300,000,000 aggregate principal amount of
11 1/4% Senior Notes due 2005, Series C (the "Notes"). The Notes will be
guaranteed (the "Guarantees") on a senior unsecured basis by Iridium Roaming LLC
and Iridium IP LLC (collectively, the "Guarantor Subsidiaries" and, together
with the Note Issuers, the "Issuers"). The Notes and the Guarantees are
collectively referred to herein as the "Securities"). The Notes will be issued
pursuant to an Indenture to be dated as of October 17, 1997 (the "Indenture")
among the Note Issuers, the Guarantor Subsidiaries and State Street Bank and
Trust Company, as trustee (the "Trustee"). The Issuers hereby confirm their
agreement with Chase Securities Inc. ("CSI"), Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx and
Xxxxx Incorporated and BT Xxxx. Xxxxx Incorporated (collectively, the "Initial
Purchasers") concerning the purchase of the Notes from the Note Issuers by the
several Initial Purchasers.
The Notes will be offered and sold to the Initial Purchasers without
being registered under the Securities Act of 1933, as amended (the "Securities
Act"), in reliance upon an exemption therefrom. The Issuers will prepare an
offering memorandum dated the date hereof (the "Offering Memorandum") setting
forth information concerning the Issuers and the Securities. Copies of the
Offering Memorandum will be delivered by the Issuers to the Initial
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Purchasers pursuant to the terms of this Agreement. Any references herein to the
Offering Memorandum shall be deemed to include all amendments and supplements
thereto, unless otherwise noted. The Issuers hereby confirm that they have
authorized the use of the Offering Memorandum in connection with the offering
and resale of the Notes by the Initial Purchasers in accordance with Section 2.
Holders of the Notes (including the Initial Purchasers and their
direct and indirect transferees) will be entitled to the benefits of an Exchange
and Registration Rights Agreement, substantially in the form attached hereto as
Annex A (the "Registration Rights Agreement"), pursuant to which the Note
Issuers and the Guarantor Subsidiaries will agree to file with the Securities
and Exchange Commission (the "Commission") (i) a registration statement under
the Securities Act (the "Exchange Offer Registration Statement") registering an
issue or series of senior notes of the Note Issuers (the "Exchange Notes") which
are identical in all material respects to the Notes (except that the issue of
Exchange Notes will not contain terms with respect to transfer restrictions),
and (ii) under certain circumstances, a shelf registration statement pursuant to
Rule 415 under the Securities Act (the "Shelf Registration Statement").
Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Offering Memorandum.
1. Representations, Warranties and Agreements of the Issuers. Each
of the Issuers, jointly and severally, represent and warrant to, and agree with,
the several Initial Purchasers on and as of the date hereof and the Closing Date
(as defined in Section 3) that:
(a) The Offering Memorandum, as of the date hereof does not, and on
the Closing Date will not, contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that
the Issuers make no representation or warranty as to information contained
in or omitted from the Offering Memorandum in reliance upon and in
conformity with written information relating to the Initial Purchasers
furnished to Iridium by or on behalf of any Initial Purchaser specifically
for use therein (the "Initial Purchasers' Information").
(b) The Offering Memorandum, as of the date hereof, contains all of
the information that, if requested by a prospective purchaser of the
Securities, would be required to be provided to such prospective purchaser
pursuant to Rule 144A(d)(4) under the Securities Act.
(c) Assuming the accuracy of the representations and warranties of
the Initial Purchasers contained in Section 2 and their compliance with
the agreements set forth therein, it is not necessary, in connection with
the issuance and sale of the Securities to the Initial Purchasers and the
offer, resale and delivery of the Securities by the Initial Purchasers in
the manner contemplated by this Agreement and the Offering Memorandum, to
register the Securities under the Securities Act or to qualify the
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Indentures under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act").
(d) Each of Iridium, Iridium Roaming LLC and Iridium IP LLC has been
duly formed and is validly existing as a limited liability company in good
standing under the laws of the State of Delaware, is duly qualified to do
business and is in good standing as a foreign corporation in each
jurisdiction in which its respective ownership or lease of property or the
conduct of its businesses requires such qualification, and has all power
and authority necessary to own or hold its properties and to conduct the
businesses in which it is engaged, except where the failure to so qualify
or have such power or authority would not have a material adverse effect
on the condition (financial or otherwise), or in the earnings, business
affairs or business prospects of Iridium, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"). Iridium's only
subsidiaries are Capital, Iridium Roaming LLC and Iridium IP LLC.
(e) Capital has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of Delaware, is
duly qualified to do business and is in good standing as foreign
corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its businesses requires such qualification, and
has all power and authority necessary to own or hold its properties and to
conduct the businesses in which it is engaged, except where the failure to
so qualify or have such power or authority would not, singularly or in the
aggregate, have a Material Adverse Effect. Capital has no subsidiaries.
(f) Iridium has an authorized capitalization as set forth in the
Offering Memorandum under the heading "Capitalization". All of the
outstanding shares of capital stock or limited liability company
interests, as the case may be, of Capital and the Guarantor Subsidiaries
have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly by Iridium, free and clear of any
lien, charge, encumbrance, security interest, restriction upon voting or
transfer or any other claim of any third party.
(g) The Issuers have full right, power and authority to execute and
deliver this Agreement, the Indenture, the Registration Rights Agreement,
the Securities, the Exchange Notes and the Private Exchange Notes (as
defined in the Registration Rights Agreement), if any (collectively, the
"Transaction Documents") to the extent a party thereto and to perform
their obligations hereunder and thereunder.
(h) This Agreement has been duly authorized, executed and delivered
by the Issuers.
(i) The Registration Rights Agreement has been duly authorized by
the Note Issuers and the Guarantor Subsidiaries and, when duly executed
and delivered in accordance with its terms by each of the parties thereto,
will constitute a valid and legally binding agreement of the Note Issuers
and the Guarantor Subsidiaries enforceable against the Note Issuers and
the Guarantor Subsidiaries in accordance with its terms, subject, as
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to enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; provided
that no representation or warranty is made with respect to any provision
of such agreement purporting to require indemnification of, or
contribution to, the liability, losses, damages or claims of any person to
the extent that such provision may be limited by applicable law.
(j) The Indenture has been duly authorized by the Note Issuers and
the Guarantor Subsidiaries and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will constitute
a valid and legally binding agreement of the Note Issuers and the
Guarantor Subsidiaries enforceable against the Note Issuers and the
Guarantor Subsidiaries in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles. On the
Closing Date, the Indenture will conform in all material respects to the
requirements of the Trust Indenture Act and the rules and regulations of
the Commission applicable to an indenture which is qualified thereunder.
(k) The Notes, the Exchange Notes, the Private Exchange Notes, if
any, and the Guarantees have been duly authorized by the Note Issuers and
the Guarantor Subsidiaries and, when the Notes, the Exchange Notes and
Private Exchange Notes, if any, and the Guarantees have been duly
executed, authenticated, issued and delivered as provided in the Indenture
and paid for as provided herein, will be duly and validly issued and
outstanding and will constitute valid and legally binding obligations of
the Note Issuers and the Guarantor Subsidiaries, as the case may be,
entitled to the benefits of the Indenture and enforceable against the Note
Issuers and the Guarantor Subsidiaries, as the case may be, in accordance
with their terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
(l) Each of the Transaction Documents and the Limited Liability
Company Agreement of Iridium LLC, dated as of July 29, 1996, as amended
(the "LLC Agreement"), described in the Offering Memorandum conforms in
all material respects to the description thereof contained in the Offering
Memorandum, provided however, that the Issuers make no representation or
warranty as to whether this Agreement conforms to the description thereof
contained in the Offering Memorandum.
(m) The execution, delivery and performance by each of the Issuers
of each of the Transaction Documents to which it is a party, the issuance,
authentication, sale and delivery of the Securities, the Exchange Notes
and the Private Exchange Notes, if any, and compliance by the Issuers with
the terms thereof and the consummation of the transactions contemplated by
the Transaction Documents will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Issuers pursuant to, any
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material indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which the Issuers are a party or by
which the Issuers are bound or to which any of the property or assets of
the Issuers are subject (except for such conflicts, breaches or defaults
or liens, charges or encumbrances that would not reasonably be expected to
materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated by this Agreement or the
Transaction Documents), nor will such actions result in any violation of
the provisions of the charter, by-laws, certificate of formation or
limited liability company agreement of the Issuers or any statute or any
judgment, order, decree, rule or regulation of any court or arbitrator or
governmental agency or body having jurisdiction over the Issuers or any of
their properties or assets; and no consent, approval, authorization or
order of, or filing or registration with, any such court or arbitrator or
governmental agency or body under any such statute, judgment, order,
decree, rule or regulation is required for the execution, delivery and
performance by the Issuers of each of the Transaction Documents, the
issuance, authentication, sale and delivery of the Securities, the
Exchange Notes and the Private Exchange Notes, if any, and compliance by
the Issuers with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents, except for such
consents, approvals, authorizations, filings, registrations or
qualifications (i) which shall have been obtained or made prior to the
Closing Date and (ii) as may be required to be obtained or made under the
Securities Act and applicable state securities laws as provided in the
Registration Rights Agreement. As used herein, a "Repayment Event" means
any event or conditions which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by Iridium.
(n) The accountants who certified the financial statement and the
consolidated financial statements included in the Offering Memorandum are
independent public accountants within the meaning of the Securities Act
and the regulations thereunder. The financial statement and the
consolidated financial statements included in the Offering Memorandum,
together with the related notes, present fairly the financial position of
Iridium, Iridium's predecessor and their respective consolidated
subsidiaries at the dates indicated and the statement of operations,
stockholders' equity, members' equity and cash flows of Iridium, Iridium's
predecessor and their respective consolidated subsidiaries for the periods
specified; said financial statement and the consolidated financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout
the periods involved, except, in the case of the interim financial
statements, for the absence of complete footnote disclosure and customary
year-end adjustments. The selected financial data included in the Offering
Memorandum present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statement and the consolidated financial statements included in the
Offering Memorandum.
(o) Except for matters which are described in the Offering
Memorandum, there is no action, suit, proceeding, inquiry or investigation
before or brought by any court or
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governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of Iridium, threatened, against or affecting Iridium, which
would be required to be disclosed in a registration statement with respect
to the Securities on Form S-1 under the Securities Act, or which might
reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated in this Agreement or the Transaction Documents or the
performance by Iridium of its obligations hereunder or thereunder; all
pending legal or governmental proceedings to which Iridium is a party or
of which any of its property or assets is the subject which are not
described in the Offering Memorandum, including ordinary routine
litigation incidental to the business, would not reasonably be expected to
result in a Material Adverse Effect.
(p) No action has been taken and no statute, rule, regulation or
order has been enacted, adopted or issued by any governmental agency or
body which prevents the issuance of the Securities, the Exchange Notes or
the Private Exchange Notes, if any, pursuant to the Transaction Documents,
or suspends the sale of the Securities, the Exchange Notes or the Private
Exchange Notes, if any, in any jurisdiction; no injunction, restraining
order or order of any nature by any federal or state court of competent
jurisdiction has been issued with respect to the Issuers which would
prevent or suspend the issuance or sale of the Securities, the Exchange
Notes, or the Private Exchange Notes, if any, or the use of the Offering
Memorandum in any jurisdiction; and the Issuers have complied with any and
all requests by any securities authority in any jurisdiction for
additional information to be included in the Offering Memorandum.
(q) None of the Issuers is (i) in violation of its by-laws,
certificate of formation, certificate of incorporation or limited
liability company agreement, as the case may be, (ii) in default in any
material respect, and no event has occurred which, with notice or lapse of
time or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which it is a party or by which it is bound or
to which any of its property or assets is subject or (iii) in violation in
any material respect of any law, ordinance, governmental rule, regulation
or court decree to which it or its property or assets may be subject,
except for any default or violation that would not result in a Material
Adverse Effect.
(r) Except as disclosed in the Offering Memorandum or as would not
have a Material Adverse Effect, (i) Iridium possesses or has the right to
benefit from such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by Iridium and (ii) Iridium
is in compliance with the current terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except where
the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
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Material Adverse Effect; and Iridium has not received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in a Material
Adverse Effect. This representation does not extend to Governmental
Licenses required for Iridium to conduct its business as proposed to be
conducted, most of which have not been obtained.
(s) Each of the Issuers believes that it is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Offering
Memorandum, will not be, an "investment company" or an entity "controlled"
by a company registered as an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act").
(t) Iridium maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access
to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reason able intervals and appropriate
action is taken with respect to any differences.
(u) Iridium has insurance as required by Section 4.17 of the
Indenture.
(v) Except as described in the Offering Memorandum or as would not
have a Material Adverse Effect, Iridium owns or possesses or reasonably
believes it can acquire on reasonable terms, adequate patents, patent
rights, licenses, inventions, copyrights (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures, but excluding any required regulatory
licenses or approvals), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property"), or that it
can contract on reasonable terms with third parties who can acquire the
Intellectual Property necessary to carry on the business now operated by
Iridium or described in the Offering Memorandum, and Iridium has not
received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of
Iridium and which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, would result in a Material Adverse Effect.
(w) Iridium has good and marketable title to all real property it
owns; Iridium has good title to all other properties owned by it free and
clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (i) are described
in the Offering Memorandum or (ii) would not, singly or in the
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aggregate, reasonably be expected to have a Material Adverse Effect; and
all of the leases and subleases material to the business of Iridium and
under which Iridium holds properties described in the Offering Memorandum,
are in full force and effect, and Iridium has no notice of any material
claim of any sort that has been asserted by anyone adverse to the rights
of Iridium under any of the leases or subleases mentioned above, or
affecting or questioning the rights of Iridium to the continued possession
of the leased or subleased premises under any such lease or sublease,
except such as would not reasonably be expected to have a Material Adverse
Effect.
(x) No labor dispute with the employees of any of the Issuers exists
or, to the knowledge of the Issuers, is imminent.
(y) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or Section
4975 of the Internal Revenue Code of 1986, as amended from time to time
(the "Code")) or "accumulated funding deficiency" (as defined in Section
302 of ERISA) or any of the events set forth in Section 4043(b) of ERISA
(other than events with respect to which the 30-day notice requirement
under Section 4043 of ERISA has been waived) has occurred with respect to
any employee benefit plan of any of the Issuers which could reasonably be
expected to have a Material Adverse Effect; each such employee benefit
plan (other than a multiemployer plan) is in compliance in all material
respects with applicable law, including ERISA and the Code; the Issuers
have not incurred and do not expect to incur liability under Title IV of
ERISA with respect to the termination of, or withdrawal from, any pension
plan for which any of the Issuers would have any liability; and each such
pension plan (other than a multiemployer plan) that is intended to be
qualified under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to act,
which could reasonably be expected to cause the loss of such
qualification.
(z) Except as described in the Offering Memorandum and except as
would not, singly or in the aggregate, result in a Material Adverse
Effect, (i) Iridium is not in violation of any federal, state, local or
foreign statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (ii) Iridium has
all permits, authorizations and approvals required under any applicable
Environmental Laws and is in compliance with its requirements, (iii) there
are no pending or threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or
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proceedings relating to any Environmental Law against Iridium and (iv)
there are no events or circumstances that might reasonably be expected or
form the basis of an order for clean-up or remediation, or an action, suit
or proceeding by any private party or governmental body or agency, against
or affecting Iridium relating to Hazardous Materials or any Environmental
Laws.
(aa) Except as disclosed in the Offering Memorandum and except as
would not reasonably be expected to have a Material Adverse Effect, to the
best of the Issuers' knowledge, none of the parties to (i) the Gateway
Authorization Agreements, (ii) the Space System Contract, (iii) the
Operations and Maintenance Contract, (iv) the Iridium Business Support
System Contract with Xxxxxxxx Consulting, (v) the Terrestrial Network
Development Contract, (vi) the Support Agreement between Iridium and
Motorola, (vii) the Amended and Restated Agreement Regarding Guarantee,
(viii) the Motorola MOU and (ix) the LLC Agreement (collectively, the
foregoing are herein called the "Principal Agreements"), is in breach of,
or in default in the performance or observance of, any material
obligation, term, covenant or condition contained therein. Each of the
Principal Agreements that Iridium has previously delivered to the Initial
Purchasers is a true and correct copy, and there have been no additional
amendments, alterations, modifications or waivers thereto or in the
exhibits or schedules thereto. Iridium has duly and validly authorized,
executed and delivered each of the Principal Agreements to which it is a
party and, to the best of the Issuers' knowledge, the other parties to
each of the Principal Agreements have duly and validly executed and
delivered each of the Principal Agreements and, assuming due and valid
authorization, execution and delivery by such other parties, each of the
Principal Agreements is a valid and legally binding agreement of Iridium,
enforceable against Iridium in accordance with its terms subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; provided
that no representation or warranty is made with respect to any provision
of any Principal Agreement purporting to require indemnification of, or
contribution to, the liability losses, damages or claims of any person to
the extent that such provision may be limited by applicable laws.
(bb) The Federal Communications Commission (the "FCC") has
authorized Motorola, Inc. (Motorola, Inc., together with its subsidiaries,
"Motorola") to construct a mobile satellite system capable of operating in
the 1616 to 1626.5 MHz frequency bands, consistent with the technical
specifications set forth in its application, the FCC's rules and the
conditions set forth in the FCC's Orders and Authorization (DA 95-131),
released January 31, 1995, DA 95-372, released February 28, 1995, FCC
96-279, released June 27, 1996, DA 96-1789, released October 30, 1996.
(cc) None of the Issuers is a party to any contract, agreement or
understanding with any person that would give rise to a valid claim
against the Initial Purchasers for a brokerage commission, finder's fee or
like payment in connection with the offering and sale of the Securities.
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(dd) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(ee) None of the Issuers, any of its affiliates or any person acting
on its or their behalf has engaged or will engage in any directed selling
efforts (as such term is defined in Regulation S under the Securities Act
("Regulation S")), and all such persons have complied and will comply with
the offering restrictions requirement of Regulation S to the extent
applicable. No representation is herein made with respect to any Initial
Purchaser, any affiliate thereof or any person acting on its behalf, or
with respect to any obligation thereof.
(ff) None of the Issuers or any of its affiliates has, directly or
through any agent, sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of, any security (as such term is defined
in the Securities Act), which is or will be integrated with the sale of
the Securities in a manner that would require registration of the
Securities under the Securities Act.
(gg) None of the Issuers or any of its affiliates or any other
person acting on its or their behalf has engaged, in connection with the
offering of the Notes, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act. No
representation is herein made with respect to any Initial Purchaser, any
affiliate thereof or any person acting on its behalf, or with respect to
any obligation thereof.
(hh) There are no securities of the Issuers registered under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
listed on a national securities exchange or quoted in a U.S. automated
inter-dealer quotation system.
(ii) The Issuers have not taken and will not take, directly or
indirectly, any action prohibited of them by Regulation M under the
Exchange Act in connection with the offering of the Notes.
(jj) The statements (including the assumptions described therein)
included in the Offering Memorandum relating to Iridium's operations,
expected markets, size of expected addressable markets for mobile
satellite services, expected technical capabilities, expected funding
needs, expected financing sources, expected pricing, expected launch
schedule, expected commercial operations schedule, the estimate of the
last year in which Iridium will have negative cash flow and a net increase
in year-end borrowings and expected future regulatory approvals as well as
information concerning expected characteristics of competing systems and
expected actions of third parties such as equipment suppliers, gateway
operators, service providers and roaming partners were made by Iridium
with a reasonable basis and reflect Iridium's good faith estimate of the
matters described therein.
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(kk) The Issuers have complied with, and are and will be in
compliance with, the provisions of that certain Florida act relating to
disclosure of doing business with Cuba, codified as Section 517.075 of the
Florida statutes, and the rules and regulations thereunder or is exempt
therefrom.
(ll) Since the respective dates as of which information is given in
the Offering Memorandum, except as otherwise stated therein, (i) there has
been no material adverse change in the condition (financial or otherwise),
or in the earnings, business affairs or business prospects of any of the
Issuers, whether or not arising in the ordinary course of business, (ii)
the Issuers have not incurred any liability or obligation, direct or
contingent, other than in the ordinary course of business which is
material with respect to Iridium, (iii) the Issuers have not entered into
any transaction, other than in the ordinary course of business which is
material with respect to Iridium, and (iv) there has not been any change
in the capital stock, membership interests or long-term debt of the
Issuers other than fluctuations in revolving credit agreements, or any
dividend or distribution of any kind declared, paid or made by the Issuers
on any class of their capital stock or membership interests. Launch delays
shall not be covered by this representation.
(mm) Iridium is a "reporting issuer" as defined in Rule 902(l) under
the Securities Act.
2. Purchase and Resale of the Securities. (a) On the basis of the
representations, warranties and agreements contained herein, and subject to the
terms and conditions set forth herein, the Issuers agree to issue and sell to
each of the Initial Purchasers, severally and not jointly, and each of the
Initial Purchasers, severally and not jointly, agree to purchase from the
Issuers, the principal amount of Notes (together with the related Guarantees)
set forth opposite the name of such Initial Purchaser on Schedule 1 hereto at a
purchase price of 97.75% of the principal amount of the Notes (together with
accrued interest, if any, from October 17, 1997). The Issuers shall not be
obligated to deliver any of the Securities except upon payment for all of the
Securities to be purchased as provided herein.
(b) The Initial Purchasers have advised the Issuers that they
propose to offer the Securities for resale upon the terms and subject to the
conditions set forth herein and in the Offering Memorandum. Each Initial
Purchaser, severally and not jointly, represents and warrants to, and agrees
with, the Issuers that (i) it is purchasing the Securities pursuant to a private
sale exempt from registration under the Securities Act, (ii) neither it nor any
of its affiliates or any person acting on its or their behalf has solicited
offers for, or offered or sold, and no such person will solicit offers for, or
offer or sell, the Securities by means of any form of general solicitation or
general advertising within the meaning of Rule 502(c) of Regulation D under the
Securities Act ("Regulation D") or in any manner involving a public offering
within the meaning of Section 4(2) of the Securities Act and no such person has
engaged, and no such person will engage, in any directed selling efforts within
the meaning of Rule 902 under the Securities Act in connection with any of the
Securities, and all such persons have and will comply with the offering
restrictions and requirements of Regulation S, (iii) it has solicited and will
solicit offers for the Securities only from, and has offered or sold and will
offer, sell or deliver the Securities,
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as part of its initial offering, only (A) to persons whom it reasonably believes
to be qualified institutional buyers ("Qualified Institutional Buyers") as
defined in Rule 144A under the Securities Act, or if any such person is buying
for one or more institutional accounts for which such person is acting as
fiduciary or agent, only when such person has represented to it that each such
account is a Qualified Institutional Buyer to whom notice has been given that
such sale or delivery is being made in reliance on Rule 144A and in each case,
in transactions in accordance with Rule 144A and (B) in transactions outside the
United States to persons who are not U.S. Persons (as defined in Rule 902 under
the Securities Act) and to whom the Initial Purchasers reasonably believe offers
and sales of the Securities may be made in reliance on Rule 903 under the
Securities Act in transactions meeting the requirements of Regulation S, and
(iv) that it is a Qualified Institutional Buyer. Each Initial Purchaser,
severally and not jointly, agrees that, prior to or simultaneously with the
confirmation of sale by such Initial Purchaser to any purchaser of any of the
Securities purchased by such Initial Purchaser pursuant hereto, such Initial
Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and
any amendment or supplement thereto that the Issuers shall have furnished to
such Initial Purchaser prior to the date of such confirmation of sale). In
addition to the foregoing, each Initial Purchaser acknowledges and agrees that
the Issuers and, for purposes of the opinions to be delivered to the Initial
Purchasers pursuant to Sections 5(d) and (g), counsel for the Issuers and for
the Initial Purchasers, respectively, may rely upon the accuracy of the
representations and warranties of the Initial Purchasers and their compliance
with their agreements contained in this Section 2, and each Initial Purchaser
hereby consents to such reliance. CSI will advise Iridium of the completion of
the distribution of the Securities pursuant to Regulation S. Each Initial
Purchaser severally agrees that, at or prior to confirmation of sale of
Securities (other than a sale pursuant to Rule 144A), it will have sent to each
distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases Securities from it during the restricted period a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933 (the "Securities Act") and may not be offered
and sold within the United States or to, or for the account or benefit of,
U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the commencement of the
offering and the closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Securities Act. Terms
used above have the meaning given to them by Regulation S."
Each Initial Purchaser severally represents that it has not entered into and
agrees that it will not enter into any contractual arrangement with respect to
the distribution or delivery of the Securities, except with its affiliates or
with the prior written consent of Iridium.
(c) Each Initial Purchaser, severally and not jointly, agrees that
(i) it has not offered or sold, and will not offer or sell, in the United
Kingdom by means of any document, any Securities offered hereby, other than to
persons whose ordinary activities involve them in acquiring, holding, managing
or disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities
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Regulations 1995 (the "Regulations"), (ii) it has complied and will comply with
all applicable provisions of the Financial Services Act 1986 and the Regulations
with respect to anything done by it in relation to the Securities in, from or
otherwise involving the United Kingdom, and (iii) it has only issued or passed
on and will only issue or pass on to any person in the United Kingdom any
document received by it in connection with the issuance of the Securities if
that person is of a kind described in Article 11(3) of the Financial Services
Act 1986 (Investment Advertisements) (Exemptions) Order 1995 or is a person to
whom the document may otherwise lawfully be issued or passed on.
(d) The Issuers acknowledge and agree that, subject to the
restrictions herein, the Initial Purchasers may sell Securities to any affiliate
of an Initial Purchaser and that any such affiliate may sell Securities
purchased by it to an Initial Purchaser.
3. Delivery of and Payment for the Securities. (a) Delivery of the
Notes and payment for the Notes shall be made at the offices of Milbank, Tweed,
Xxxxxx & XxXxxx, Washington, D.C., or at such other place as shall be agreed
upon by the Initial Purchasers and the Issuers, at 10:00 A.M., New York City
time, on October 17, 1997, or at such other time or date, not later than seven
full business days thereafter, as shall be agreed upon by the Initial Purchasers
and the Issuers (such date and time of payment and delivery being referred to
herein as the "Closing Date"). The Initial Purchasers and the Issuers have
determined that is it not feasible to close at an earlier date.
(b) On the Closing Date, payment of the purchase price for the
Securities shall be made to the Issuers by wire or book-entry transfer of
immediately available funds to such account or accounts as the Issuers shall
specify prior to the Closing Date or by such other means as the parties hereto
shall agree prior to the Closing Date against delivery to the Initial Purchasers
of the certificates evidencing the Securities. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligations of the Initial Purchasers hereunder. Upon delivery,
the Securities sold to Qualified Institutional Buyers and pursuant to Regulation
S shall be in global form, registered in the name of DTC (as hereinafter
defined) or its nominee and in such denominations as CSI on behalf of the
Initial Purchasers shall have requested in writing not less than two full
business days prior to the Closing Date. The Issuers agree to make one or more
global certificates evidencing the Securities available for inspection by CSI on
behalf of the Initial Purchasers in New York, New York or Washington, D.C. at
least 24 hours prior to the Closing Date.
4. Further Agreements of the Issuers. Except in the case of clauses
(e), (k) and (l), for the shorter of (i) the six month period immediately
following the date of the Offering Memorandum and (ii) the period from the date
of the Offering Memorandum to the date the first Exchange Notes are issued, each
of the Issuers agrees with each of the several Initial Purchasers:
(a) to advise the Initial Purchasers promptly and, if requested,
confirm such advice in writing, of the happening of any event which makes
any statement of a material fact made in the Offering Memorandum untrue or
which requires the making of any additions to or changes in the Offering
Memorandum (as amended or supplemented from
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time to time) in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; to advise the
Initial Purchasers promptly of any order preventing or suspending the use
of the Offering Memorandum, of any suspension of the qualification of the
Securities for offering or sale in any jurisdiction and of the initiation
or threatening of any proceeding for any such purpose; and to use its
reasonable efforts to prevent the issuance of any such order preventing or
suspending the use of the Offering Memorandum or suspending any such
qualification and, if any such suspension is issued, to obtain the lifting
thereof at the earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and
counsel for the Initial Purchasers, without charge, as many copies of the
Offering Memorandum (and any amendments or supplements thereto) as may be
reasonably requested;
(c) prior to making any amendment or supplement to the Offering
Memorandum, to furnish a copy thereof to each of the Initial Purchasers
and counsel for the Initial Purchasers and not to effect any such
amendment or supplement to which the Initial Purchasers shall reasonably
object by notice to the Issuers after a reasonable period to review;
(d) if, at any time prior to completion of the resale of the Notes
by the Initial Purchasers, any event shall occur or condition exist as a
result of which it is necessary, in the opinion of counsel for the Initial
Purchasers or counsel for the Issuers, to amend or supplement the Offering
Memorandum in order that the Offering Memorandum will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Offering
Memorandum to comply with applicable law, to promptly prepare such
amendment or supplement as may be necessary to correct such untrue
statement or omission or so that the Offering Memorandum, as so amended or
supplemented, will comply with applicable law;
(e) for so long as the Securities are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, to furnish to holders of the Securities and prospective
purchasers of the Securities designated by such holders, upon request of
such holders or such prospective purchasers, the information required to
be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless
Iridium is then subject to and in compliance with Section 13 or 15(d) of
the Exchange Act (the foregoing agreement being for the benefit of the
holders from time to time of the Securities and prospective purchasers of
the Securities designated by such holders);
(f) to promptly take from time to time such actions as the Initial
Purchasers may reasonably request, in cooperation with the Initial
Purchasers, to qualify the Securities for offering and sale under the
securities or Blue Sky laws of such jurisdictions as the Initial
Purchasers may designate and to continue such qualifications in effect for
so long as required for the resale of the Securities; and to arrange for
the determination of the
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eligibility for investment of the Securities under the laws of such
jurisdictions as the Initial Purchasers may reasonably request; provided
that no Issuer shall be obligated to qualify as a foreign corporation or
dealer in any jurisdiction in which it is not so qualified, to subject
itself to taxation or other governmental fees and charges in respect of
any jurisdiction to which it is not otherwise subject or to file a general
consent to service of process in any jurisdiction;
(g) to reasonably assist the Initial Purchasers in arranging for the
Securities to be designated Private Offerings, Resales and Trading through
Automated Linkages ("PORTAL") Market securities in accordance with the
rules and regulations adopted by the National Association of Securities
Dealers, Inc. ("NASD") relating to trading in the PORTAL Market and for
the Securities to be eligible for clearance and settlement through The
Depository Trust Company ("DTC"), the Euroclear System and Cedel Bank,
societe anonyme;
(h) not to, and to cause its affiliates not to, sell, offer for sale
or solicit offers to buy or otherwise negotiate in respect of any security
(as such term is defined in the Securities Act) which could be integrated
with the sale of the Securities in a manner which would require
registration of the Securities under the Securities Act;
(i) except following the effectiveness of a registration statement
with respect to the Securities, Exchange Notes or the Private Exchange
Notes, if any, not to, and to cause its affiliates not to, and not to
authorize or knowingly permit any person acting on their behalf to,
solicit any offer to buy or offer to sell the Securities by means of any
form of general solicitation or general advertising within the meaning of
Regulation D, by means of any directed selling efforts (as defined in Rule
902 under the Securities Act) in connection with the Securities or in any
manner involving a public offering within the meaning of Section 4(2) of
the Securities Act; and not to offer, sell, contract to sell or otherwise
dispose of, directly or indirectly, any securities under circumstances
where such offer, sale, contract or disposition would cause the exemption
afforded by Section 4(2) of the Securities Act to cease to be applicable
to the offering and sale of the Securities to the Initial Purchasers as
contemplated by this Agreement and the Offering Memorandum nothing in this
clause (i) shall apply to any action or inaction by an Initial Purchaser
or any affiliate thereof;
(j) for a period of 45 days from the date of the Offering
Memorandum, not to, directly or indirectly, offer for sale, sell, contract
to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of, directly or indirectly, or file a
registration statement for, or announce any offer, sale, contract for sale
of or other disposition of any debt securities issued or guaranteed by any
of the Issuers or any of their subsidiaries (other than the Securities,
Exchange Notes and the Private Exchange Notes, if any, or pursuant to the
Registration Rights Agreement), without the prior written consent of the
Initial Purchasers;
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(k) during the period from the Closing Date until two years after
the Closing Date or the effectiveness of a registration statement with
respect to the Securities, without the prior written consent of the
Initial Purchasers, not to, and to use reasonable efforts not permit any
of its affiliates (as defined in Rule 144 under the Securities Act) which
it controls to, resell any of the Securities that have been reacquired by
them, except for Securities purchased by the Issuers or any of their
affiliates and resold in a transaction registered under the Securities
Act;
(l) in connection with the offering of the Notes, until CSI on
behalf of the Initial Purchasers shall have notified the Issuers of the
completion of the resale of the Securities, not to, and to cause its
affiliated purchasers (as defined in Regulation M under the Exchange Act)
not to, either alone or with one or more other persons, bid for or
purchase, for any account in which it or any of its affiliated purchasers
has a beneficial interest, any Securities, or attempt to induce any person
to purchase any Securities; and not to, and to cause its affiliated
purchasers not to, make bids or purchase for the purpose of creating
actual, or apparent, active trading in or of raising the price of the
Securities;
(m) to furnish to each of the Initial Purchasers on or prior to the
Closing Date hereof a copy of the independent accountants' report included
in the Offering Memorandum signed by the accountants rendering such
report; and
(n) to apply the net proceeds from the sale of the Securities as set
forth in the Offering Memorandum under the heading "Use of Proceeds".
5. Conditions of Initial Purchasers' Obligations. The respective
obligations of the several Initial Purchasers hereunder are subject to the
accuracy, on and as of the date hereof and the Closing Date, of the
representations and warranties of the Issuers contained herein, to the accuracy
of the statements of the Issuers and their officers made in any certificates
delivered pursuant hereto, to the performance by the Issuers of their
obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Offering Memorandum (and any amendments or supplements
thereto) shall have been printed and copies distributed to the Initial
Purchasers as promptly as practicable on or following the date of this
Agreement or at such other date and time as to which the Initial
Purchasers may agree; and no stop order suspending the sale of the
Securities in any jurisdiction shall have been issued and no proceeding
for that purpose shall have been commenced or shall be pending or
threatened.
(b) None of the Initial Purchasers shall have discovered and
disclosed to Iridium on or prior to the Closing Date that the Offering
Memorandum, as amended or supplemented, contains an untrue statement of a
fact which, in the opinion of counsel for the Initial Purchasers specified
herein, is material or omits to state any fact which, in the opinion of
such counsel, is material and is required to be stated therein or is
necessary to
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make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of each of the Transaction Documents
and the transactions contemplated thereby, shall be satisfactory in all
material respects to the Initial Purchasers, and the Issuers shall have
furnished to the Initial Purchasers all documents and information that
they or their counsel may reasonably request to enable them to pass upon
such matters.
(d) Xxxxxxxx & Xxxxxxxx shall have furnished to the Initial
Purchasers their written opinion and letter, as counsel to the Issuers,
addressed to the Initial Purchasers and dated the Closing Date, in form
and substance reasonably satisfactory to the Initial Purchasers,
substantially to the effect set forth in Annex B hereto.
(e) Steptoe & Xxxxxxx LLP shall have furnished to the Initial
Purchasers their written opinion, as regulatory counsel for Motorola
Satellite Communications as FCC license holder, addressed to the Initial
Purchasers and dated the Closing Date, in form and substance reasonably
satisfactory to the Initial Purchasers, substantially to the effect set
forth in Annex C hereto.
(f) X. Xxxxxx Xxxxxx, Esq. shall have furnished to the Initial
Purchasers his written opinion, as General Counsel of Iridium, addressed
to the Initial Purchasers and dated the Closing Date, in form and
substance reasonably satisfactory to the Initial Purchasers, substantially
to the effect set forth in Annex D hereto.
(g) The Initial Purchasers shall have received from Milbank, Tweed,
Xxxxxx & XxXxxx, counsel for the Initial Purchasers, such opinion or
opinions, dated the Closing Date, with respect to such matters as the
Initial Purchasers may reasonably require, and the Issuers shall have
furnished to such counsel such documents and information as they
reasonably request for the purpose of enabling them to pass upon such
matters.
(h) The Initial Purchasers shall have received from Goldberg,
Xxxxxx, Xxxxxx & Xxxxxx, regulatory counsel for the Initial Purchasers,
such opinion or opinions, dated the Closing Date, with respect to such
matters as the Initial Purchasers may reasonably require, and the Issuers
shall have furnished to such counsel such documents and information as
they reasonably request for the purpose of enabling them to pass upon such
matters.
(i) The Issuers shall have furnished to the Initial Purchasers a
letter (the "Initial Letter") of KPMG Peat Marwick LLP, addressed to the
Initial Purchasers and dated the date hereof, containing statements and
information of the type ordinarily included in accountants "comfort
letters" with respect to the financial statements and certain financial
information contained in the Offering Memorandum.
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(j) The Issuers shall have furnished to the Initial Purchasers a
letter (the "Bring-Down Letter") of KPMG Peat Marwick LLP, addressed to
the Initial Purchasers and dated the Closing Date (i) confirming that they
are independent public accountants with respect to the Issuers within the
meaning of Rule 101 of the Code of Professional Conduct of the AICPA and
its interpretations and rulings thereunder, (ii) stating, as of the date
of the Bring-Down Letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Offering Memorandum, as of a date not more
than three business days prior to the date of the Bring-Down Letter), that
the conclusions and findings of such accountants with respect to the
financial information and other matters covered by the Initial Letter are
accurate and (iii) confirming in all material respects the conclusions and
findings set forth in the Initial Letter.
(k) As of the Closing Date, there shall not have been, since the
date hereof or since the respective dates as of which information is given
in the Offering Memorandum, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of Iridium, whether or not arising in the ordinary course of
business, and the Initial Purchasers shall have received a certificate of
the President or a Vice President of Iridium and of the chief financial or
chief accounting officer of Iridium, dated as of Closing Date, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 hereof are true and correct
with the same force and effect as though expressly made at and as of
Closing Date, and (iii) each of the Issuers, as the case may be, has
complied with all agreements and satisfied all conditions on its part to
be performed or satisfied at or prior to Closing Date pursuant hereto.
Launch delays shall not be covered by this condition.
(l) The Initial Purchasers shall have received a certificate, dated
the Closing Date, of the President or Vice President of Motorola, in form
and substance satisfactory to counsel for the Initial Purchasers, as to
the accuracy of the statements attributed to Motorola in the Offering
Memorandum, and to such other matters relating to Motorola as counsel for
the Initial Purchasers may reasonably request, substantially to the effect
set forth in Annex E hereto.
(m) The Initial Purchasers shall have received a counterpart of the
Registration Rights Agreement which shall have been executed and delivered
by a duly authorized officer of each of the Issuers.
(n) The Indenture shall have been duly executed and delivered by the
Note Issuers, the Guarantor Subsidiaries and the Trustee, and the Notes
shall have been duly executed and delivered by the Issuers and duly
authenticated by the Trustee.
(o) The Notes shall have been approved by the NASD for trading in
the PORTAL Market.
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(p) If any event shall have occurred that requires the Issuers under
Section 4(d) to prepare an amendment or supplement to the Offering
Memorandum, such amendment or supplement shall have been prepared, the
Initial Purchasers shall have been given a reasonable opportunity to
comment thereon, and copies thereof shall have been delivered to the
Initial Purchasers reasonably in advance of the Closing Date.
(q) There shall not have occurred any invalidation of Rule 144A or
Regulation S under the Securities Act by any court or any withdrawal or
proposed withdrawal of any rule or regulation under the Securities Act or
the Exchange Act by the Commission or any amendment or proposed amendment
thereof by the Commission which in the judgment of the Initial Purchasers
would materially impair the ability of the Initial Purchasers to purchase,
hold or effect resales of the Securities as contemplated hereby.
(r) Subsequent to the execution and delivery of this Agreement or,
if earlier, the dates as of which information is given in the Offering
Memorandum (exclusive of any amendment or supplement thereto), there shall
not have been any material adverse change in the condition (financial or
otherwise), or in the earnings, business affairs or business prospects of
Iridium, whether or not arising in the ordinary course of business, the
effect of which, in any such case described above, is, in the judgment of
the Initial Purchasers, so material and adverse as to make it
impracticable or inadvisable to proceed with the sale or delivery of the
Securities on the terms and in the manner contemplated by this Agreement
and the Offering Memorandum (exclusive of any amendment or supplement
thereto).
(s) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency or body which would, as of the Closing Date, prevent the issuance
or sale of the Securities, the Exchange Notes, or the Private Exchange
Notes, if any, as contemplated by the Offering Memorandum; and no
injunction, restraining order or order of any other nature by any federal
or state court of competent jurisdiction shall have been issued as of the
Closing Date which would prevent the issuance or sale as contemplated by
the Offering Memorandum of the Securities, the Exchange Notes or the
Private Exchange Notes, if any.
(t) Subsequent to the execution and delivery of this Agreement (i)
no downgrading shall have occurred in the rating accorded the Initial
Notes or the Securities by Xxxxx'x Investors Service Inc. or Standard and
Poor's Ratings Group and (ii) no such organization shall have publicly
announced that it has under surveillance or review (other than an
announcement with positive implications of a possible upgrading), its
rating of the Initial Notes or the Securities.
(u) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange, the
Nasdaq National Market System or the over-the-counter market shall have
been suspended or materially limited, or minimum prices shall have been
established on any such exchange or market by the Commission or
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the Nasdaq National Market by any such exchange or by any other regulatory
body or governmental authority having jurisdiction, or trading in any
securities of the Issuers on any exchange or in the over-the-counter
market shall have been suspended or (ii) any moratorium on commercial
banking activities shall have been declared by federal or New York state
authorities or (iii) an outbreak or escalation of hostilities or a
declaration by the United States of a national emergency or war or a
material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) the effect of which, in the
case of this clause (iii), is, in the judgment of the Initial Purchasers,
so material and adverse as to make it impracticable to market the
Securities or to enforce contracts for the sale of the Securities on the
terms and in the manner contemplated by this Agreement and in the Offering
Memorandum.
6. Termination. The obligations of the Initial Purchasers hereunder
may be terminated by the Initial Purchasers by notice given to and received by
Issuers prior to delivery of and payment for the Securities if, prior to that
time, any of the events described in Section 5(q), (r), (s), (t) or (u) shall
have occurred and be continuing.
7. Defaulting Initial Purchasers. (a) If, on the Closing Date, any
Initial Purchaser defaults in the performance of its obligations under this
Agreement, the remaining non-defaulting Initial Purchasers shall be obligated to
purchase the principal amount of the Notes (and the related Guarantees) which
the defaulting Initial Purchaser agreed but failed to purchase in the respective
proportions which the principal amount of Notes set forth opposite the name of
each remaining non-defaulting Initial Purchaser in Schedule 1 bears to the
aggregate principal amount of Notes set forth opposite the names of all the
remaining non-defaulting Initial Purchasers in Schedule 1 hereto; provided,
however, that the remaining non-defaulting Initial Purchasers shall not be
obligated to purchase any of the Notes on such Closing Date if the total
principal amount of Notes which the defaulting Initial Purchasers agreed but
failed to purchase on such date exceeds one-eleventh of the aggregate principal
amount of Notes to be purchased on such Closing Date and any remaining
non-defaulting Initial Purchaser shall not be obligated to purchase more than
110% of the principal amount of Notes which it agreed to purchase on such
Closing Date. If the foregoing maximums are exceeded, the remaining
non-defaulting Initial Purchasers or those other purchasers satisfactory to the
Initial Purchasers who so agree, shall have the right, but shall not be
obligated, to purchase, in such proportion as may be agreed upon among them, all
the Notes to be purchased on such Closing Date.
(b) If, after giving effect to any arrangements for the purchase of
the Notes of a defaulting Initial Purchaser by the non-defaulting Initial
Purchasers as provided in subsection (a) above, the aggregate principal amount
of such Notes which remain unpurchased exceeds one-eleventh of the aggregate
principal amount of all the Notes, then this Agreement shall thereupon terminate
without liability on the part of any non-defaulting Initial Purchaser or the
Issuers, except for the expenses to be borne by the Issuers as provided in
Section 8 and 12 and the indemnity and contribution agreement in Sections 9 and
10, but nothing herein shall relieve a defaulting Initial Purchaser from
liability for its default. If other purchasers are obligated or agree to
purchase the Notes of a defaulting or withdrawing Initial Purchaser, either the
non-
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defaulting Initial Purchasers or the Note Issuers may postpone the Closing
Date for up to seven full business days in order to effect any changes that in
the opinion of counsel for the Note Issuers or counsel for the Initial
Purchasers may be necessary in the Offering Memorandum or in any other document
or arrangement, and the Note Issuers agree to promptly prepare any amendment or
supplement to the Offering Memorandum that effects any such changes.
8. Reimbursement of Initial Purchasers' Expenses. If this Agreement
shall have been terminated pursuant to Section 6 or due to the failure of the
Issuers to fulfill a condition stated in Section 5, the Issuers shall reimburse
the Initial Purchasers for such out-of-pocket expenses (including reasonable
fees and disbursements of counsel) as shall have been reasonably incurred by the
Initial Purchasers in connection with this Agreement and the proposed purchase
and resale of the Notes. If this Agreement is terminated pursuant to Section 7
by reason of the default of one or more of the Initial Purchasers, the Issuers
shall not be obligated to reimburse any Initial Purchaser on account of such
expenses.
9. Indemnification. (a) The Issuers shall, jointly and severally,
indemnify and hold harmless each Initial Purchaser and its affiliates, and each
person, if any, who controls any Initial Purchaser within the meaning of the
Securities Act or the Exchange Act (collectively referred to for purposes of
this Section 9(a) and Section 10 as an Initial Purchaser), from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, without limitation, any loss, claim, damage, liability or
action relating to purchases and sales of the Securities), to which that Initial
Purchaser may become subject, whether commenced or threatened, under the
Securities Act, the Exchange Act, any other federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in the Offering Memorandum
or in any amendment or supplement thereto or in any information provided to the
holders of the Securities pursuant to Rule 144A(d)(4) under the Securities Act
or (ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and shall reimburse each Initial Purchaser promptly upon demand for
any legal or other expenses reasonably incurred by that Initial Purchaser in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Issuers shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in conformity
with any Initial Purchasers' Information.
(b) Each Initial Purchaser, severally and not jointly, shall
indemnify and hold harmless the Issuers and their respective affiliates, and
each person, if any, who controls the Issuers within the meaning of the
Securities Act or the Exchange Act (collectively referred to for purposes of
this Section 9(b) and Section 10 as the Issuers), from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Issuers may become subject, whether commenced or threatened, under
the Securities Act, the Exchange Act, any other federal or state statutory law
or regulation, at common law or otherwise, insofar as
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such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Offering Memorandum or in any amendment or supplement thereto
or (ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with any Initial Purchasers' Information, and shall
reimburse the Issuers for any legal or other expenses reasonably incurred by the
Issuers in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 9(a) or 9(b), notify the indemnifying
party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 9 except to the extent
that it has been materially prejudiced by such failure; and, provided, further,
that the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 9. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 9 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof; provided, however, that an indemnified party shall
have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel for the indemnified party will be at
the expense of such indemnified party unless (1) the employment of counsel by
the indemnified party has been authorized in writing by the indemnifying party,
(2) the indemnified party has reasonably concluded (based upon advice of
independent counsel to the indemnified party) that there may be legal defenses
available to it or other indemnified parties that are different from or in
addition to those available to the indemnifying party, (3) a conflict or
potential conflict exists (based upon advice of independent counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. Each indemnified party, as a condition of the indemnity agreements
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contained in Sections 9(a) and 9(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any action
effected without its written consent. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
10. Contribution. If the indemnification provided for in Section 9
is unavailable or insufficient to hold harmless an indemnified party under
Section 9(a) or 9(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Issuers on the one hand and the
Initial Purchasers on the other from the offering of the Securities or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Issuers on
the one hand and the Initial Purchasers on the other with respect to the
statements or omissions that resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Issuers on the one hand
and the Initial Purchasers on the other with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Securities purchased under this Agreement (before deducting expenses)
received by or on behalf of the Issuers without duplication, on the one hand,
and the total discounts and commissions received by the Initial Purchasers with
respect to the Securities purchased under this Agreement, on the other, bear to
the total gross proceeds from the sale of the Securities under this Agreement,
in each case as set forth in the table on the cover page of the Offering
Memorandum. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to the Issuers or
information supplied by the Issuers on the one hand or to any Initial
Purchasers' Information on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Issuers and the Initial Purchasers agree
that it would not be just and equitable if contributions pursuant to this
Section 10 were to be determined by pro rata allocation (even if the Initial
Purchasers were treated as one entity for such purpose) or by any other method
of allocation that does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 10 shall be deemed to include, for purposes of
this Section 10, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending or preparing to
defend any such action or claim. Notwithstanding the provisions of this Section
10, no Initial Purchaser shall be required to contribute any amount in excess of
the amount by which the total price at which the Securities purchased by it and
resold to investors were offered to investors exceeds the amount of any damages
which such Initial Purchaser has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or
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omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Initial Purchasers' obligations to contribute as provided
in this Section 10 are several in proportion to their respective purchase
obligations and not joint.
11. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchasers, the Issuers
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except as provided in
Sections 9 and 10 with respect to affiliates and controlling persons of the
Issuers and the Initial Purchasers and in Section 4(e) with respect to holders
and prospective purchasers of the Securities. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 11, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
12. Expenses. The Issuers agree with the Initial Purchasers to pay
(a) the costs incident to the authorization, issuance, sale, preparation and
delivery of the Securities and any taxes payable in that connection; (b) the
costs incident to the preparation, printing and distribution of the Offering
Memorandum and any amendments or supplements thereto; (c) the costs of
reproducing and distributing each of the Transaction Documents; (d) the costs
incident to the preparation, printing and delivery of the certificates
evidencing the Securities, including stamp duties and transfer taxes, if any,
payable upon issuance of the Securities; (e) the fees and expenses of the
Issuers' counsel and independent accountants; (f) the fees and expenses of
qualifying the Securities under the securities laws of the several jurisdictions
as provided in Section 4(f) and of preparing, printing and distributing Blue Sky
Memoranda (including related fees and expenses of counsel for the Initial
Purchasers); (g) any fees charged by rating agencies for rating the Securities;
(h) the fees and expenses of the Trustee and any paying agents (including
related fees and expenses of any counsel to such parties); and (i) all expenses
and application fees incurred in connection with the application for the
inclusion of the Securities on the PORTAL Market and the approval of the
Securities for book-entry transfer by DTC. Except as provided in this Section 12
and Section 8, the Initial Purchasers shall pay their own costs and expenses.
13. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Issuers and the Initial
Purchasers contained in this Agreement or made by or on behalf of the Issuers or
the Initial Purchasers pursuant to this Agreement or any certificate delivered
pursuant hereto shall survive the delivery of and payment for the Securities and
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
of them or any of their respective affiliates, officers, directors, employees,
representatives, agents or controlling persons.
14. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
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(a) if to the Initial Purchasers, shall be delivered or sent by mail
or telecopy transmission to Chase Securities Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxxx Xxxxxxx (telecopier no.: (212)
270-0994); or
(b) if to the Note Issuers or Guarantor Subsidiaries, shall be
delivered or sent by mail or telecopy transmission to c/o Iridium LLC at
0000 Xxx Xxxxxx X.X., Xxxxxxxxxx, X.X. 00000, Attention: General Counsel
(telecopier no.: 202-408-3761);
provided that any notice to an Initial Purchaser or Issuer pursuant to Section
9(c) shall also be delivered or sent by mail to such Initial Purchaser or Issuer
at its address set forth on the signature page hereof. Any such statements,
requests, notices or agreements shall take effect at the time of receipt
thereof. The Issuers shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the Initial Purchasers
by CSI.
15. Definition of Terms. For purposes of this Agreement, (a) the
term "business day" means any day on which the New York Stock Exchange, Inc. is
open for trading, (b) the term "subsidiary" has the meaning set forth in the
"Description of Notes" section of the Offering Memorandum and (c) except where
otherwise expressly provided, the term "affiliate" has the meaning set forth in
Rule 405 under the Securities Act.
16. Initial Purchasers' Information. The parties hereto acknowledge
and agree that, for all purposes of this Agreement, the Initial Purchasers'
Information consists solely of the following information in the Offering
Memorandum: (i) the last paragraph on the front cover page concerning the terms
of the offering by the Initial Purchasers; (ii) the legend on the first inside
cover page concerning over-allotment and trading activities by the Initial
Purchasers; and (iii) the statements concerning the Initial Purchasers contained
in the third, fourth, fifth, sixth, tenth and eleventh paragraph and the second
sentence of the sixth paragraph under the heading "Plan of Distribution".
17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
18. Counterparts. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by telecopier) and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
19. Amendments. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
20. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Issuers and the several
Initial Purchasers in accordance with its terms.
Very truly yours,
IRIDIUM LLC
By /s/ X. Xxxxxx Xxxxxx
______________________________
Name: X. Xxxxxx Xxxxxx
Title: Vice President,
General Counsel
and Secretary
IRIDIUM CAPITAL CORPORATION
By /s/ X. Xxxxxx Xxxxxx
______________________________
Name: X. Xxxxxx Xxxxxx
Title: Vice President,
General Counsel
and Secretary
IRIDIUM ROAMING LLC
By /s/ X. Xxxxxx Xxxxxx
______________________________
Name: X. Xxxxxx Xxxxxx
Title: Vice President,
General Counsel
and Secretary
IRIDIUM IP LLC
By /s/ X. Xxxxxx Xxxxxx
______________________________
Name: X. Xxxxxx Xxxxxx
Title: Vice President,
General Counsel
and Secretary
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Accepted:
CHASE SECURITIES INC.
By____________________________
Authorized Signatory
Address for notices pursuant to Section 9(c):
0 Xxxxx Xxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 10081
Attention: Legal Department
XXXXXXX LYNCH, XXXXXX, XXXXXX
AND XXXXX INCORPORATED
By____________________________
Authorized Signatory
Address for notices pursuant to Section 9(c):
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: X. Xxxx Xxxxxxx
XX XXXX. BROWN INCORPORATED
By________________________
Authorized Signatory
Address for notices pursuant to Section 9(c ):
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx XxXxxxxxx
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SCHEDULE 1
Initial Purchasers Principal Amount of Notes
------------------ -------------------------
Chase Securities Inc. $120,000,000
Xxxxxxx Lynch, Xxxxxx, Xxxxxx
and Xxxxx Incorporated 120,000,000
BT Xxxx. Xxxxx Incorporated 60,000,000
------------
Total $300,000,000
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ANNEX A
Iridium LLC
Iridium Capital Corporation
$300,000,000 11 1/4% Senior Notes due 2005, Series C
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
Dated as of October 17, 1997
CHASE SECURITIES INC.
XXXXXXX XXXXX, XXXXXX, XXXXXX
AND XXXXX INCORPORATED
BT ALEX. BROWN INCORPORATED
c/o Chase Securities Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Iridium LLC, a Delaware limited liability company ("Iridium"), and
Iridium Capital Corporation, a Delaware corporation ("Capital" and, together
with Iridium, the "Issuers"), propose, jointly and severally, to issue and sell
to Chase Securities Inc. ("CSI"), Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx and Xxxxx
Incorporated and BT Xxxx. Xxxxx Incorporated (collectively, the "Initial
Purchasers"), upon the terms and subject to the conditions set forth in a
purchase agreement dated October 9, 1997 (the "Purchase Agreement"),
$300,000,000 aggregate principal amount of Notes (the "Notes"). The Notes will
be fully guaranteed on an unsecured, senior basis by Iridium Roaming LLC and
Iridium IP LLC (collectively, the "Guarantor Subsidiaries"). Capitalized terms
used but not defined herein shall have the meanings given to such terms in the
Purchase Agreement.
As an inducement to the Initial Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to the obligations of the
Initial Purchasers thereunder, the Issuers agree with the Initial Purchasers,
for the benefit of the holders (including the Initial Purchasers) of the Notes,
the Exchange Notes (as defined herein) and the Private Exchange Notes (as
defined herein) (collectively, the "Holders"), as follows:
1. Registered Exchange Offer. The Issuers and the Guarantor
Subsidiaries shall, at their cost and expense, (i) prepare and, not later than
90 days (or, if such day is not a business day, the first business day
thereafter) following the date of original issuance of the Notes (the "Issue
Date"), file with the Commission a registration statement (the "Exchange Offer
Registration Statement") on Form S-1 or Form S-4 under the Securities Act, if
use of such form is then available, with respect to a proposed offer to the
Holders (the "Registered Exchange Offer") to issue and deliver to the Holders,
in exchange for the Notes a like aggregate principal
30
amount of debt securities of the Issuers that are identical in all material
respects to the Notes (the debt securities issued in exchange for the Notes are
referred to herein as the "Exchange Notes"), except the Exchange Notes shall not
contain terms with respect to transfer restrictions, (ii) use their reasonable
efforts to cause the Exchange Offer Registration Statement to become effective
under the Securities Act no later than 180 days after the Issue Date and the
Registered Exchange Offer to be consummated no later than 210 days after the
Issue Date (or if the 180th day or 210th day is not a business day, the first
business day thereafter) and (iii) use their reasonable efforts to keep the
Exchange Offer Registration Statement effective for not less than 20 business
days (or longer, if required by applicable law or otherwise extended by the
Issuers at their option) after the date on which notice of the Registered
Exchange Offer is mailed to the Holders (such period being called the "Exchange
Offer Registration Period"). The Exchange Notes will be issued under the
Indenture or another indenture (the "Exchange Notes Indenture") among the
Issuers, the Guarantor Subsidiaries and the Trustee or such other bank or trust
company, as trustee (the "Exchange Notes Trustee"), such indenture to be
identical in all material respects to the Indenture, except the Exchange Notes
shall not contain terms with respect to transfer restrictions (as described
above). If the Issuers and the Guarantor Subsidiaries effect the Registered
Exchange Offer, the Issuers and the Guarantor Subsidiaries will be entitled to
close the Registered Exchange Offer 20 business days after the commencement
thereof; provided, however, that the Issuers have accepted all the Notes
theretofore validly tendered in accordance with the terms of the Registered
Exchange Offer.
As soon as practicable after the effectiveness of the Exchange Offer
Registration Statement, unless the Registered Exchange Offer would not be
permitted by applicable law or the Commission's policy, the Issuers and the
Guarantor Subsidiaries shall commence the Registered Exchange Offer, it being
the objective of such Registered Exchange Offer to enable each Holder electing
to exchange Notes for Exchange Notes that correspond to the Notes originally
held by such Holder (assuming that such Holder (a) is not an affiliate (as
defined in Rule 144 under the Securities Act) of the Issuers, the Guarantor
Subsidiaries or an Exchanging Dealer (as defined herein) not complying with the
requirements of the next sentence, (b) is not an Initial Purchaser holding Notes
that have, or that are reasonably likely to have, the status of an unsold
allotment in an initial distribution, (c) will acquire the Exchange Notes in the
ordinary course of such Holder's business and (d) has no arrangements or
understandings with any person to participate in the distribution of the
Exchange Notes (within the meaning of the Securities Act)), to transfer such
Exchange Notes from and after their receipt without any limitations or
restrictions on transfer under the Securities Act and without material
restrictions on transfer under the securities laws of no less than one-half of
the several states of the United States. The Issuers, the Guarantor
Subsidiaries, the Initial Purchasers and each Exchanging Dealer acknowledge
that, pursuant to interpretations by the Commission's staff of Section 5 of the
Securities Act and in the absence of an applicable exemption therefrom, (a) each
Holder that is a broker-dealer electing to exchange Notes, acquired for its own
account as a result of market-making activities or other trading activities, for
Exchange Notes (an "Exchanging Dealer"), is required to deliver a prospectus
containing substantially the information set forth (i) in Annex A hereto on the
cover of the prospectus forming part of the Exchange Offer Registration
Statement, (ii) in Annex B hereto in the forepart of the Exchange Offer
Registration Statement and in the "Exchange Offer Procedures" section and the
"Purpose of the Exchange Offer" section of the prospectus forming a
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part of the Exchange Offer Registration Statement, (iii) in Annex C hereto in
the "Plan of Distribution" section of such prospectus forming part of the
Exchange Offer Registration Statement and (iv) in Annex D hereto in the letter
of transmittal delivered pursuant to the Registered Exchange Offer, in
connection with a sale of any such Exchange Notes received by such Exchanging
Dealer pursuant to the Registered Exchange Offer and (b) an Initial Purchaser
that elects to sell Exchange Notes acquired in exchange for Notes constituting
any portion of an unsold allotment is required to deliver a prospectus
containing the information required by Items 507 or 508 of Regulation S-K under
the Securities Act, as applicable, in connection with such sale.
If, prior to the consummation of the Registered Exchange Offer, any
Holder holds any Notes acquired by it that have, or that are reasonably likely
to be determined to have, the status of an unsold allotment in an initial
distribution, or any Holder is not entitled to participate in the Registered
Exchange Offer, the Issuers shall, upon the request of any such Holder,
simultaneously with the delivery of the Exchange Notes in the Registered
Exchange Offer, issue and deliver to any such Holder, in exchange for the Notes
held by such Holder (the "Private Exchange"), a like aggregate principal amount
of debt securities of the Issuers (the "Private Exchange Notes") that are
identical in all material respects to the Exchange Notes that correspond to the
Notes originally held by such Holder, except for the transfer restrictions
relating to such Private Exchange Notes. The Private Exchange Notes will be
issued under the same indenture as the Exchange Notes, and the Issuers shall use
their reasonable efforts to cause the Private Exchange Notes to bear the same
CUSIP number as the Exchange Securities.
In connection with the Registered Exchange Offer, the Issuers shall:
(a) mail, or cause to be mailed, to each Holder a copy of the
prospectus forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related documents;
(b) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York;
(c) permit Holders to withdraw tendered Notes at any time prior to
the close of business, New York City time, on the last business day on
which the Registered Exchange Offer shall remain open; and
(d) otherwise comply in all respects with all laws that are
applicable to the Registered Exchange Offer.
As soon as practicable after the close of the Registered Exchange
Offer and any Private Exchange, as the case may be, the Issuers shall:
(a) accept for exchange all Notes validly tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
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(b) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes so accepted for exchange; and
(c) cause the Trustee or the Exchange Notes Trustee, as the case may
be, to authenticate and deliver to each Holder, Exchange Notes or Private
Exchange Notes, as the case may be, that correspond to the Notes
originally held by such Holder equal in principal amount to the Notes of
such Holder so accepted for exchange therefor.
The Issuers shall use their reasonable efforts to keep the Exchange
Offer Registration Statement effective and to amend and supplement the
prospectus contained therein, as may be necessary, in the opinion of counsel for
the Exchanging Dealers or for the Issuers, in order to permit such prospectus to
be used by all persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such persons must comply with such
requirements in order to resell Exchange Notes; provided that (i) in the case
where such prospectus and any amendment or supplement thereto must be delivered
by an Exchanging Dealer, such period shall be the lesser of 180 days and the
date on which all Exchanging Dealers have sold all Exchange Notes held by them
and (ii) the Issuers shall make such prospectus and any amendment or supplement
thereto available to any broker-dealer for use in connection with any resale of
any Exchange Notes for a period of not less than 90 days after the consummation
of the Registered Exchange Offer. The Indenture or the Exchange Notes Indenture,
as the case may be, shall provide that the Notes, the Exchange Notes and the
Private Exchange Notes, if any, shall vote and consent together on all matters
as one class and that none of the Notes, the Exchange Notes or the Private
Exchange Notes will have the right to vote or consent as a separate class on any
matter.
Interest on each Exchange Note and Private Exchange Note issued
pursuant to the Registered Exchange Offer and Private Exchange will accrue
interest from the last interest payment date on which interest was paid on the
Notes surrendered in exchange therefor or, if no interest has been paid on the
Notes, from the Issue Date.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Issuers that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Notes received by such Holder will be
acquired in the ordinary course of business, (ii) such Holder will have no
arrangements or understanding with any person to participate in the distribution
of the Notes or the Exchange Notes (within the meaning of the Securities Act),
(iii) such Holder is not an affiliate (as defined in Rule 405 under the
Securities Act) of the Issuers or the Guarantor Subsidiaries or, if such Holder
is such an affiliate, such Holder will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent applicable,
(iv) if such Holder is not a broker-dealer, that it is not engaged in, and does
not intend to engage in, the distribution of the Exchange Notes, and (v) if such
Holder is a broker-dealer, that it will receive Exchange Notes for its own
account in exchange for Notes that were acquired as a result of market-making
activities or other trading activities and that it will deliver a prospectus in
connection with any resale of such Exchange Notes.
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Notwithstanding any other provisions hereof, the Issuers and the
Guarantor Subsidiaries will use their reasonable efforts to ensure that (i) any
Exchange Offer Registration Statement and any amendment thereto and any
prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder, (ii) any Exchange Offer Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any prospectus forming part of any Exchange Offer Registration Statement,
and any supplement to such prospectus, does not, as of the date of such
prospectus or supplement, as the case may be, include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that in no such case shall the Issuers
be responsible for information concerning any Initial Purchaser of the Notes,
provided in writing by any Initial Purchaser to the Issuers, included in the
Exchange Offer Registration Statement, the prospectus contained therein, or any
amendment or supplement thereto, as the case may be.
2. Shelf Registration. If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff the Issuers
determine upon the advice of their outside counsel that they are not permitted
to effect the Registered Exchange Offer as contemplated by Section 1 hereof,
(ii) any Notes validly tendered pursuant to the Registered Exchange Offer are
not exchanged for Exchange Notes within 30 days after the commencement of the
Registered Exchange Offer, (iii) any Initial Purchaser so requests within 90
days after the consummation of the Registered Exchange Offer with respect to
Notes or Private Exchange Notes which are not eligible to be exchanged for
Exchange Notes in the Registered Exchange Offer and are held by it following the
consummation of the Registered Exchange Offer, (iv) any applicable law or
interpretations do not permit any Holder to participate in the Registered
Exchange Offer, (v) any Holder that participates in the Registered Exchange
Offer notifies Iridium within 20 business days after the consummation of the
Registered Exchange Offer that it did not receive freely transferable Exchange
Notes in exchange for validly tendered Notes, or (vi) the Issuers so elect, then
the following provisions shall apply:
(a) The Issuers and the Guarantor Subsidiaries shall use their
reasonable efforts to file, on or prior to 60 days after so required and
requested pursuant to this Section 2 (or, if such day is not a business day, the
first business day thereafter) with the Commission, and thereafter use their
reasonable efforts to cause to be declared effective under the Securities Act on
or prior to 60 days after such filing is made (or, if such day is not a business
day, the first business day thereafter) a shelf registration statement on an
appropriate form under the Securities Act relating to the offer and sale of the
Transfer Restricted Notes (as defined below) by the Holders thereof from time to
time in accordance with the methods of distribution set forth in such
registration statement (hereafter, a "Shelf Registration Statement" and,
together with any Exchange Offer Registration Statement, a "Registration
Statement"); provided, however, that no Holder (other than an Initial Purchaser)
shall be entitled to have the Notes held by it covered by such Shelf
Registration Statement unless such Xxxxxx agrees in writing to be bound by all
the
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provisions of this Agreement applicable to such Holder (including certain
indemnification obligations).
(b) The Issuers and the Guarantor Subsidiaries shall use their
reasonable efforts to keep the Shelf Registration Statement continuously
effective in order to permit the prospectus forming part thereof to be used by
Holders of Transfer Restricted Notes for a period ending on the earlier of (i)
two years from the Issue Date or such shorter period that will terminate when
all the Transfer Restricted Notes covered by the Shelf Registration Statement
have been sold pursuant thereto or for a period of one year in the event the
Shelf Registration Statement is requested by the Initial Purchasers pursuant to
Section 2(iii) and (ii) the date on which the Notes become eligible for resale
pursuant to Rule 144 under the Securities Act (in any such case, such period
being called the "Shelf Registration Period").
(c) Notwithstanding any other provisions hereof, the Issuers and the
Guarantor Subsidiaries will use their reasonable efforts to ensure that (i) any
Shelf Registration Statement and any amendment thereto and any prospectus
forming part thereof and any supplement thereto complies in all material
respects with the Securities Act and the rules and regulations of the Commission
thereunder, (ii) any Shelf Registration Statement and any amendment thereto (in
either case, other than with respect to information included therein in reliance
upon or in conformity with written information furnished to the Issuers by or on
behalf of any Holder specifically for use therein (the "Holders' Information")),
as of its effective date, does not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading and (iii) any prospectus forming
part of any Shelf Registration Statement, and any amendment or supplement to
such prospectus (in either case, other than with respect to Holders'
Information), does not, as of its date, include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
3. Liquidated Damages. (a) The parties hereto agree that the Holders
of Transfer Restricted Notes will suffer damages if the Issuers and the
Guarantor Subsidiaries fail to fulfill their obligations described under Section
1 or Section 2, as applicable, and that it would not be feasible to ascertain
the extent of such damages. Accordingly, if (i) an Exchange Offer Registration
Statement covering the Notes is not filed with the Commission on or prior to 90
days after the Issue Date (or, if such day is not a business day, the first
business day thereafter) or a Shelf Registration Statement covering the Notes is
not filed with the Commission on or prior to 60 days after the date such filing
is requested or required to be made pursuant to Section 2 (or, if such day is
not a business day, the first business day thereafter) (ii) an Exchange Offer
Registration Statement covering the Notes is not declared effective within 180
days after the Issue Date (or if the 180th day is not a business day, the first
business day thereafter) or a Shelf Registration Statement covering the Notes is
not declared effective within 60 days after such filing is made (or, if such day
is not a business day, the first business day thereafter) (each such date, the
"Effectiveness Target Date"), (iii) the Registered Exchange Offer covering the
Notes is not consummated within 30 days after the Effectiveness Target Date, or
(iv) a Shelf Registration Statement or an Exchange Offer Registration Statement
covering the Notes, is filed and declared
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effective within the period ending on the Effectiveness Target Date but shall
thereafter cease to be effective (at any time that the Issuers are obligated to
maintain the effectiveness thereof) or useable without being succeeded within 30
days by an additional Registration Statement covering the Notes filed and
declared effective (each such event referred to in clauses (i) through (iv), a
"Registration Default"), the Issuers and the Guarantor Subsidiaries will be
obligated to pay liquidated damages to each Holder of Transfer Restricted Notes,
during the first 90-day period immediately following the occurrence of one or
more of such Registration Defaults, in an amount equal to $.05 per week per
$1,000 principal amount of Transfer Restricted Notes held by such Holder until
(i) the Registration Statement covering the Notes is filed, (ii) an Exchange
Offer Registration Statement covering the Notes is declared effective and the
Registered Exchange Offer covering the Notes is consummated, (iii) a Shelf
Registration Statement covering the Notes is declared effective or (iv) the
applicable Registration Statement covering the Notes again becomes effective, as
the case may be. The liquidated damages will increase by an additional $.05 per
week per $1,000 principal amount of Transfer Restricted Notes, which are Notes,
held by each Holder during each subsequent 90-day period until the date on which
all such Registration Defaults have been cured, up to a maximum amount of
Liquidated Damages of $.50 per week per $1,000 amount of Notes. Following the
cure of all Registration Defaults, the accrual of liquidated damages will cease.
As used herein, the term "Transfer Restricted Notes" means (i) each Note until
the date on which such Note has been exchanged for a freely transferable
corresponding Exchange Note in the Registered Exchange Offer, (ii) each Note or
Private Exchange Note until the date on which it has been effectively registered
under the Securities Act and disposed of in accordance with the Shelf
Registration Statement or (iii) each Note or Private Exchange Note until the
date on which it is distributed to the public pursuant to Rule 144 under the
Securities Act or is saleable pursuant to Rule 144(k) under the Securities Act.
Notwithstanding anything to the contrary in this Section 3, the Issuers and the
Guarantor Subsidiaries shall not be required to pay liquidated damages to a
Holder of Transfer Restricted Notes (i) if such Holder failed to comply with its
obligations to make the representations set forth in the second to last
paragraph of Section 1 or failed to provide the information required to be
provided by it, if any, pursuant to Section 4(n) or (ii) if a holder of such
Transfer Restricted Notes was, at any time while the Registered Exchange Offer
was pending, eligible to exchange, and did not validly tender, such Transfer
Restricted Notes for freely transferable corresponding Exchange Notes in such
Exchange Offer.
(b) A Registration Default referred to in Section 3(a)(iv) shall be
deemed not to have occurred and be continuing in relation to the applicable
Shelf Registration Statement or the related prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate annual audited or,
if required by the rules and regulations under the Securities Act, quarterly
unaudited financial information with respect to the Issuers where such
post-effective amendment is not yet effective and needs to be declared effective
to permit Holders to use the related prospectus or (y) for a period not to
exceed an aggregate of 45 days in any calendar year, other material events or
developments with respect to the Issuers that would need to be described in such
Shelf Registration Statement or the related prospectus and (ii) in the case of
clause (y), the Issuers are proceeding promptly and in good faith to amend or
supplement such Shelf Registration Statement and related prospectus to describe
such events; provided, however, that in no event
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shall the Issuers be required to disclose the business purpose for such
suspension if the Issuers determine in good faith that such business purpose
must remain confidential. Notwithstanding the foregoing, the Issuers shall not
be required to pay Liquidated Damages with respect to the Notes of Holder if the
failure arises from the Issuers' failure to file, or cause to become effective,
a Shelf Registration Statement within the time periods specified in this Section
3 by reason of the failure of such Holder to provide such information as (i) the
Issuers may reasonably request, with reasonable prior written notice, for use in
the Shelf Registration Statement or any prospectus included therein to the
extent the Issuers reasonably determine that such information is required to be
included therein by applicable law, (ii) the NASD or the Commission may request
in connection with such Shelf Registration Statement or (iii) is required to
comply with the agreements of such Holder as contained in Section 4(n) to the
extent compliance thereof is necessary for the Shelf Registration Statement to
be declared effective.
(c) The Issuers shall notify the Trustee and the Paying Agent under
the Indenture immediately upon the happening of each and every Registration
Default relating to the Notes. The Issuers and the Guarantor Subsidiaries shall
pay the liquidated damages due on the Transfer Restricted Notes by depositing
with the Paying Agent (which may not be either of the Issuers for these
purposes), in trust, for the benefit of the Holders thereof, prior to 10:00
a.m., New York City time, on the next interest payment date specified by the
Indenture and the Notes, sums sufficient to pay the liquidated damages then due.
The Liquidated Damages due shall be payable on each interest payment date
specified by the Indenture and the Notes to the record holder entitled to
receive the interest payment to be made on such date. Each obligation to pay
liquidated damages shall be deemed to accrue from and including the date of the
applicable Registration Default.
(d) The parties hereto agree that the liquidated damages provided
for in this Section 3 constitute a reasonable estimate of and are intended to
constitute the sole damages that will be suffered by Holders of Transfer
Restricted Notes by reason of the failure of (i) the Shelf Registration
Statement or the Exchange Offer Registration Statement to be filed, (ii) the
Shelf Registration Statement to remain effective or (iii) the Exchange Offer
Registration Statement to be declared effective and remain effective and the
Registered Exchange Offer to be consummated, in each case to the extent required
by this Agreement.
4. Registration Procedures. In connection with any Registration
Statement, the following provisions shall apply:
(a) The Issuers shall (i) furnish to each Initial Purchaser, prior
to the effectiveness thereof with the Commission, a copy of the Registration
Statement and each amendment thereof and each supplement, if any, to the
prospectus included therein and shall use their reasonable efforts to reflect in
each such document, when so filed with the Commission, such comments as any
Initial Purchaser may reasonably propose within three business days after being
sent a draft thereof; (ii) include the information set forth in Annex A hereto
on the cover, in Annex B hereto on the forepart of the Registration Statement
and in the "Exchange Offer Procedures" section and the "Purpose of the Exchange
Offer" section and in Annex C hereto in the "Plan of Distribution" section of
the prospectus forming a part of the Exchange Offer
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37
Registration Statement, and include the information set forth in Annex D hereto
in the Letter of Transmittal delivered pursuant to the Registered Exchange
Offer; (iii) if requested by any Initial Purchaser, include the information
required by Items 507 or 508 of Regulation S-K, as applicable, in the prospectus
forming a part of the Exchange Offer Registration Statement; and (iv) in the
case of a Shelf Registration Statement, include the names of the Holders who
propose to sell Notes pursuant to such Shelf Registration Statement as selling
securityholders.
(b) The Issuers shall advise each Initial Purchaser, each Exchanging
Dealer and the Holders (if applicable) and, if requested by any such person,
confirm such advice in writing (which advice pursuant to clauses (ii)-(v) hereof
shall be accompanied by an instruction to suspend the use of the prospectus
until the requisite changes have been made):
(i) when any Registration Statement and any amendment thereto has been
filed with the Commission and when such Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements to
any Registration Statement or the prospectus included therein or for
additional information; (provided, however, that with respect to any
requests prior to the effectiveness of the Registration Statement, the
Issuers shall be required to give written notice only to the Initial
Purchasers and their counsel).
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of any Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Issuers of any notification with respect to
the suspension of the qualification of the Notes, the Exchange Notes or
the Private Exchange Notes for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the making of any
changes in any Registration Statement or the prospectus included therein
in order that the statements therein are not misleading and do not omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(c) The Issuers and the Guarantor Subsidiaries will make every
reasonable effort to obtain the withdrawal at the earliest possible time of any
order suspending the effectiveness of any Registration Statement.
(d) The Issuers will furnish to each Holder of Transfer Restricted
Notes included within the coverage of any Shelf Registration Statement, without
charge, at least one conformed copy of such Shelf Registration Statement and any
post-effective amendment
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38
thereto, including financial statements and schedules and, if any such Holder so
requests in writing, all exhibits thereto (including those, if any, incorporated
by reference).
(e) The Issuers will, during the Shelf Registration Period, promptly
deliver to each Holder of Transfer Restricted Notes included within the coverage
of any Shelf Registration Statement, without charge, as many copies of the
prospectus (including each preliminary prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder
may reasonably request; and the Issuers consent, subject to the provisions of
this Agreement, to the use of such prospectus or any amendment or supplement
thereto by each of the selling Holders of Transfer Restricted Notes in
connection with the offer and sale of the Transfer Restricted Notes covered by
such prospectus or any amendment or supplement thereto during the Shelf
Registration Period.
(f) The Issuers will furnish to each Initial Purchaser and each
Exchanging Dealer, and to any other Holder who so requests, without charge, at
least one conformed copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including financial statements and schedules
and, if any Initial Purchaser or Exchanging Dealer or any such Holder so
requests in writing, all exhibits thereto (including those, if any, incorporated
by reference).
(g) The Issuers will, during the Exchange Offer Registration Period
or the Shelf Registration Period, as applicable, as promptly as practicable
deliver to each Initial Purchaser, each Exchanging Dealer and such other persons
that are required to deliver a prospectus following the Registered Exchange
Offer, without charge, as many copies of the final prospectus included in the
Exchange Offer Registration Statement or the Shelf Registration Statement and
any amendment or supplement thereto as such Initial Purchaser, Exchanging Dealer
or other persons may reasonably request; and the Issuers consent, subject to the
provisions of this Agreement, to the use of such prospectus or any amendment or
supplement thereto by any such Initial Purchaser, Exchanging Dealer or other
persons required to deliver a prospectus during and following the Exchange Offer
Registration Period or Shelf Registration Period in each case in the form most
recently provided to each such person by the Issuers.
(h) Prior to the effective date of any Registration Statement, the
Issuers and the Guarantor Subsidiaries will use their reasonable efforts to
register or qualify, or cooperate with the Holders of Notes, Exchange Notes or
Private Exchange Notes included therein and their respective counsel in
connection with the registration or qualification of, such Notes, Exchange Notes
or Private Exchange Notes for offer and sale under the securities or blue sky
laws of such jurisdictions as any such Holder reasonably requests in writing and
do any and all other acts or things necessary or advisable to enable the offer
and sale in such jurisdictions of the Notes, Exchange Notes or Private Exchange
Notes covered by such Registration Statement; provided that neither Issuer will
be required to qualify to do business in any jurisdiction where it is not then
so qualified, to subject itself to taxation or other governmental fees or
charges in respect of any jurisdiction in which it is not otherwise subject or
to take any action which would subject it to general service of process or to
taxation in any such jurisdiction where it is not then so subject.
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39
(i) The Issuers and the Guarantor Subsidiaries will cooperate with
the Holders of Notes, Exchange Notes or Private Exchange Notes to facilitate the
timely preparation and delivery of certificates representing Notes, Exchange
Notes or Private Exchange Notes to be sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as the Holders thereof may request in writing prior to
sales of Notes, Exchange Notes or Private Exchange Notes pursuant to such
Registration Statement.
(j) If any event contemplated by Section 4(b)(ii) through (v) occurs
during the period for which the Issuers are required to maintain an effective
Registration Statement, as promptly as practicable the Issuers and the Guarantor
Subsidiaries will prepare and file with the Commission a post-effective
amendment to the Registration Statement or a supplement to the related
prospectus or file any other required document so that, as thereafter delivered
to holders of the Notes or purchasers of the Exchange Notes or Private Exchange
Notes from a Holder, the prospectus will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (except, in each case, for an untrue statement of material
fact or omission of a material fact made in reliance upon and in conformity with
written information furnished to the Issuers by or on behalf of the Holders
specifically for use therein).
(k) Not later than the effective date of the applicable Registration
Statement, the Issuers will provide a CUSIP number for the Notes, the Exchange
Notes or Private Exchange Notes, as the case may be, and provide the Trustee
with printed certificates for the Notes, the Exchange Notes or the Private
Exchange Notes, as the case may be, in a form eligible for deposit with The
Depository Trust Company.
(l) The Issuers and the Guarantor Subsidiaries will comply with all
applicable rules and regulations of the Commission to the extent and so long as
they are applicable to the Registered Exchange Offer, the Private Exchange or
the registration effected pursuant to a Shelf Registration Statement and will
make generally available to their securityholders as soon as practicable after
the effective date of the applicable Registration Statement an earning statement
satisfying the provisions of Section 11(a) of the Securities Act; provided that
in no event shall such earning statement be delivered later than 45 days after
the end of a 12-month period (or 90 days, if such period is a fiscal year)
beginning with the first month of Iridium's first fiscal quarter commencing
after the effective date of the applicable Registration Statement, which
statement shall cover such 12-month period.
(m) The Issuers and the Guarantor Subsidiaries will cause the
Indenture or the Exchange Note Indenture, as the case may be, to be qualified
under the Trust Indenture Act as required by applicable law in a timely manner.
(n) The Issuers and the Guarantor Subsidiaries may require each
Holder of Transfer Restricted Securities to be registered pursuant to any Shelf
Registration Statement to furnish to the Issuers such information concerning the
Holder and the distribution of such Transfer Restricted Notes as the Issuers may
from time to time reasonably require for inclusion in such Shelf Registration
Statement, and the Issuers may exclude from such registration the
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40
Transfer Restricted Notes of any Holder that fails to furnish such information
within a reasonable time after receiving such request. Each such Holder agrees
to notify the Issuers as promptly as practicable of any inaccuracy or change in
information previously furnished by such Holder to the Issuers or of the
occurrence of any event, in either case, as a result of which any prospectus
relating to such registration contains or would contain an untrue statement of a
material fact regarding such Holder or such Holder's intended method of
distribution of such Transfer Restricted Notes, or omits to state a material
fact regarding such Holder or such Xxxxxx's intended method of distribution of
such Transfer Restricted Notes, required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing, and promptly to furnish to the Issuers any additional information
required to correct and update any previously furnished information or required
so that such prospectus shall not contain, with respect to such Holder or the
distribution of such Transfer Restricted Notes, an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing. Each such Holder shall comply with the provisions
of the Securities Act applicable to such Holder with respect to the disposition
by such Holder of Transfer Restricted Notes, covered by such registration
statement in accordance with the intended methods of disposition by such Holder
set forth in such registration statement.
(o) In the case of a Shelf Registration Statement, each Holder of
Transfer Restricted Notes to be registered pursuant thereto agrees by
acquisition of such Transfer Restricted Notes that, upon receipt of any notice
from the Issuers pursuant to Section 4(b)(ii) through (v), such Holder will
discontinue disposition of such Transfer Restricted Notes until such Xxxxxx's
receipt of copies of the supplemental or amended prospectus contemplated by
Section 4(j) or until advised in writing (the "Advice") by the Issuers that the
use of the applicable prospectus may be resumed. If the Issuers shall give any
notice under Section 4(b)(ii) through (v) during the period that the Issuers are
required to maintain an effective Registration Statement (the "Effectiveness
Period"), such Effectiveness Period shall be extended by the number of days
during such period from and including the date of the giving of such notice to
and including the date when each seller of Transfer Restricted Notes covered by
such Registration Statement shall have received (x) the copies of the
supplemental or amended prospectus contemplated by Section 4(j) (if an amended
or supplemental prospectus is required) or (y) the Advice (if no amended or
supplemental prospectus is required).
(p) In the case of a Shelf Registration Statement, the Issuers and
the Guarantor Subsidiaries shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form) and take
all such other action, if any, as Holders of a majority in aggregate principal
amount of the Notes, Exchange Notes and Private Exchange Notes being sold, taken
as a single class, or the managing underwriters (if any) shall reasonably
request in order to facilitate any disposition of Notes, Exchange Notes or
Private Exchange Notes pursuant to such Shelf Registration Statement; provided,
however, that the Issuers shall not be required to enter into such agreement
more than once with respect to all the Notes and may delay entering into such
agreement until the consummation of any underwritten public offering which such
Issuers shall have then undertaken.
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(q) In the case of a Shelf Registration Statement, the Issuers and
the Guarantor Subsidiaries shall (i) make reasonably available for inspection by
a representative of, and Special Counsel (as defined below) acting for, Holders
of a majority in aggregate principal amount of the Notes, Exchange Notes and
Private Exchange Notes being sold, taken as a single class, and any underwriter
participating in any disposition of Notes, Exchange Notes or Private Exchange
Notes pursuant to such Shelf Registration Statement, all relevant financial and
other records, pertinent corporate documents and properties of the Issuers and
the Guarantor Subsidiaries and their subsidiaries and (ii) use their reasonable
efforts to have their officers, directors, employees, accountants and counsel
supply all relevant information reasonably requested by such representative,
Special Counsel or any such underwriter (an "Inspector") in connection with such
Shelf Registration Statement, in each case, as is customary for similar due
diligence investigations.
(r) In the case of a Shelf Registration Statement, the Issuers and
the Guarantor Subsidiaries shall, if requested in writing by Holders of a
majority in aggregate principal amount of the Notes, Exchange Notes and Private
Exchange Notes being sold, taken as a single class, their Special Counsel or the
managing underwriters (if any) in connection with such Shelf Registration
Statement, use their reasonable efforts to cause (i) their counsel to deliver an
opinion relating to the Shelf Registration Statement and the Notes, Exchange
Notes or Private Exchange Notes, as applicable, in customary form, (ii) their
officers to execute and deliver all customary documents and certificates
requested by Holders of a majority in aggregate principal amount of the Notes,
Exchange Notes and Private Exchange Notes being sold, taken as a single class,
their Special Counsel or the managing underwriters (if any) and (iii) their
independent public accountants to provide a comfort letter or letters in
customary form, subject to receipt of appropriate documentation as contemplated,
and only if permitted, by Statement of Auditing Standards No. 72.
5. Registration Expenses. The Issuers and the Guarantor Subsidiaries
will bear all expenses incurred in connection with the performance of their
obligations under Sections 1, 2, 3 and 4 and the Issuers and the Guarantor
Subsidiaries will reimburse the Initial Purchasers and the Holders for the
reasonable fees and disbursements of one firm of attorneys chosen by the Holders
of a majority in aggregate principal amount of the Notes, the Exchange Notes and
the Private Exchange Notes to be sold, taken as a single class, pursuant to each
Registration Statement (the "Special Counsel") acting for the Initial Purchasers
or Holders in connection with the Registered Exchange Offer or a Shelf
Registration, if applicable, it being understood that the Issuers and the
Guarantor Subsidiaries shall not be responsible for the fees and disbursements
of more than one counsel employed at any one time.
6. Indemnification. (a) In the event of a Shelf Registration
Statement or in connection with any prospectus delivery pursuant to an Exchange
Offer Registration Statement by an Initial Purchaser or Exchanging Dealer, as
applicable, the Issuers and the Guarantor Subsidiaries shall, jointly and
severally, indemnify and hold harmless each Holder (including, without
limitation, any such Initial Purchaser or Exchanging Dealer) and its affiliates,
and each person, if any, who controls such Holder within the meaning of the
Securities Act or the Exchange Act (collectively referred to for purposes of
this Section 6 and Section 7 as a Holder)
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from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, without limitation, any loss, claim,
damage, liability or action relating to purchases and sales of Notes, Exchange
Notes or Private Exchange Notes), to which that Holder may become subject,
whether commenced or threatened, under the Securities Act, the Exchange Act, any
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any such Registration Statement or any prospectus forming part
thereof or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and shall reimburse
each Holder promptly upon demand for any legal or other expenses reasonably
incurred by that Holder in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Issuers and the
Guarantor Subsidiaries shall not be liable in any such case to the extent that
any such loss, claim, damage, liability or action arises out of, or is based
upon, an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with any
Holders' Information; and provided, further, that with respect to any such
untrue statement in or omission from any related preliminary prospectus, the
indemnity agreement contained in this Section 6(a) shall not inure to the
benefit of any Holder to the extent that such loss, claim, damage, liability or
action of or with respect to such Holder results from the fact that both (A) a
copy of the final prospectus was not sent or given to such person at or prior to
the written confirmation of the sale of such Notes, Exchange Notes or Private
Exchange Notes to such person and (B) the untrue statement in or omission from
the related preliminary prospectus was corrected in the final prospectus unless,
in either case, such failure to deliver the final prospectus was a result of
non-compliance by the Issuers and the Guarantor Subsidiaries with Section 4(d),
4(e), 4(f) or 4(g).
(b) In the event of a Shelf Registration Statement, each Holder
shall indemnify and hold harmless the Issuers, the Guarantor Subsidiaries, their
affiliates, their respective officers, directors, employees, representatives and
agents, and each person, if any, who controls any Issuer and the Guarantor
Subsidiaries within the meaning of the Securities Act or the Exchange Act
(collectively referred to for purposes of this Section 6(b) and Section 7 as the
Issuers), from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Issuers may become
subject, whether commenced or threatened, under the Securities Act, the Exchange
Act, any other federal or state statutory law or regulation, at common law or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any such Registration Statement or any prospectus
forming part thereof or in any amendment or supplement thereto or (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, but in
each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with any Holders' Information furnished to the Issuers by such
Xxxxxx, and shall reimburse the Issuers for any legal or other expenses
reasonably
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43
incurred by the Issuers in connection with investigating or defending or
preparing to defend against or appearing as a third party witness in connection
with any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that no such Holder shall be liable for any
indemnity claims hereunder in excess of the amount of net proceeds received by
such Holder from the sale of Notes, Exchange Notes or Private Exchange Notes
pursuant to such Shelf Registration Statement.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 6(a) or 6(b), notify the indemnifying
party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 6 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and provided, further, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 6. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than the reasonable costs of investigation; provided, however,
that an indemnified party shall have the right to employ its own counsel in any
such action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party, (3)
a conflict or potential conflict exists (based upon advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. Each indemnified party, as a condition of the indemnity agreements
contained in Sections 6(a) and 6(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent. No
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indemnifying party shall, without the prior written consent of the indemnified
party (which consent shall not be unreasonably withheld), effect any settlement
of any pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
7. Contribution. If the indemnification provided for in Section 6 is
unavailable or insufficient to hold harmless an indemnified party under Section
6(a) or 6(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Issuers from the offering and sale of the Notes, on the
one hand, and a Holder with respect to the sale by such Holder of Notes,
Exchange Notes or Private Exchange Notes, on the other, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Issuers on
the one hand and such Holder on the other with respect to the statements or
omissions that resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Issuers on the one hand and a Holder on the
other with respect to such offering and such sale shall be deemed to be in the
same proportion as the total net proceeds from the offering of the Notes (before
deducting expenses) received by or on behalf of the Issuers without duplication
as set forth in the table on the cover of the Offering Memorandum, on the one
hand, bear to the total proceeds received by such Holder with respect to its
sale of Notes, Exchange Notes or Private Exchange Notes, on the other. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to the Issuers or information
supplied by the Issuers on the one hand or to any Holders' Information supplied
by such Holder on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 7 were to be determined
by pro rata allocation or by any other method of allocation that does not take
into account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 7
shall be deemed to include, for purposes of this Section 7, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending or preparing to defend any such action or claim.
Notwithstanding the provisions of this Section 7, an indemnifying party that is
a Holder of Notes, Exchange Notes or the Private Exchange Notes shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Notes, Exchange Notes or the Private Exchange Notes sold by
such indemnifying party to any purchaser exceeds the amount of any damages which
such indemnifying party has otherwise paid or become liable to pay by reason of
any untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the
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meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
8. Rules 144 and 144A. The Issuers and the Guarantor Subsidiaries
shall use their reasonable efforts to file the reports required to be filed by
them under the Securities Act and the Exchange Act in a timely manner and, if at
any time the Issuers and the Guarantor Subsidiaries are not required to file
such reports, they will, upon the written request of any Holder of Transfer
Restricted Notes, make publicly available other information so long as necessary
to permit sales of such Xxxxxx's securities pursuant to Rules 144 and 144A. The
Issuers and the Guarantor Subsidiaries covenant that they will take such further
action as any Holder of Transfer Restricted Notes may reasonably request, all to
the extent required from time to time to enable such Holder to sell Transfer
Restricted Notes without registration under the Securities Act within the
limitation of the exemptions provided by Rules 144 and 144A (including, without
limitation, the requirements of Rule 144A(d)(4)). Upon the written request of
any Holder of Transfer Restricted Notes, the Issuers shall deliver to such
Holder a written statement as to whether they have complied with such
requirements. Notwithstanding the foregoing, nothing in this Section 8 shall be
deemed to require the Issuers to register any of their securities pursuant to
the Exchange Act.
9. Underwritten Registrations. If any of the Transfer Restricted
Notes covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be selected by the Holders of
a majority in aggregate principal amount of such Transfer Restricted Notes
included in such offering, subject to the approval of the Issuers (which
approval shall not be unreasonably withheld or delayed), and such Holders shall
be responsible for all underwriting commissions and discounts in connection
therewith; provided, however, that the Issuers shall not be obligated to arrange
for more than one underwritten offering during the period that such Shelf
Registration Statement is required to be effective pursuant to this Agreement).
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted Notes on
the basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, lock-up agreements, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements.
10. Miscellaneous. (a) Amendments and Waivers. The provisions of
this Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the
Issuers have obtained the written consent of Holders of a majority in aggregate
principal amount of the Notes, Exchange Notes and Private Exchange Notes.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders whose Notes, Exchange Notes and Private Exchange Notes are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other Holders may be given by Holders of a majority in
aggregate principal amount of the Notes, the Exchange
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Notes and Private Exchange Notes being sold by such Holders pursuant to such
Registration Statement.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier or air courier guaranteeing next-day delivery:
(1) if to a Holder, at the most current address given by such Holder
to Iridium in accordance with the provisions of this Section 10(b), which
address initially is, with respect to each Holder, the address of such
Holder maintained by the Registrar under the Indenture, with a copy in
like manner to Chase Securities Inc., Xxxxxxx Lynch, Xxxxxx, Xxxxxx and
Xxxxx Incorporated and BT Xxxx. Xxxxx Incorporated;
(2) if to an Initial Purchaser, initially at its address set forth
in the Purchase Agreement; and
(3) if to any Issuer or a Guarantor Subsidiary, initially at the
address of the Issuer set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; one business day
after being delivered to a next-day air courier; five business days after being
deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if sent by telecopier.
(c) Successors And Assigns. This Agreement shall be binding upon the
Issuers and their successors and assigns.
(d) Counterparts. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by telecopier) and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(e) Definition of Terms. For purposes of this Agreement, (a) the
term "business day" means any day on which the Commission and the New York Stock
Exchange, Inc. is open for trading, (b) the term "subsidiary" has the meaning
set forth in Rule 405 under the Securities Act and (c) except where otherwise
expressly provided, the term "affiliate" has the meaning set forth in Rule 405
under the Securities Act.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without regard to
principles of conflicts of laws.
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(h) No Piggyback on Registrations. Neither the Issuers nor any of
their security holders (other than the Holders of Transfer Restricted Notes in
such capacity) shall have the right to include any securities of the Issuers in
any Shelf Registration or Registered Exchange Offer other than Transfer
Restricted Notes.
(i) Severability. The remedies provided herein are cumulative and
not exclusive of any remedies provided by law. If any term, provision, covenant
or restriction of this Agreement or the application thereof is held by a court
of competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated thereby.
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48
Please confirm that the foregoing correctly sets forth the agreement
among the Issuers and the Initial Purchasers.
Very truly yours,
IRIDIUM LLC
By /s/ X. Xxxxxx Xxxxxx
______________________________
Name: X. Xxxxxx Xxxxxx
Title: Vice President,
General Counsel
and Secretary
IRIDIUM CAPITAL CORPORATION
By /s/ X. Xxxxxx Xxxxxx
______________________________
Name: X. Xxxxxx Xxxxxx
Title: Vice President,
General Counsel
and Secretary
IRIDIUM ROAMING LLC
By /s/ X. Xxxxxx Xxxxxx
______________________________
Name: X. Xxxxxx Xxxxxx
Title: Vice President,
General Counsel
and Secretary
IRIDIUM IP LLC
By /s/ X. Xxxxxx Xxxxxx
______________________________
Name: X. Xxxxxx Xxxxxx
Title: Vice President,
General Counsel
and Secretary
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Accepted:
CHASE SECURITIES INC.
By Xxxxx Xxxx
--------------------------
Authorized Signatory
XXXXXXX LYNCH, XXXXXX, XXXXXX
AND XXXXX INCORPORATED
By Xxxx Xxxxx
--------------------------
Authorized Signatory
BT ALEX. BROWN INCORPORATED
By Xxxxxx X. Xxxx
--------------------------
Authorized Signatory
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50
ANNEX A TO EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Notes received in exchange for Notes where such Notes
were acquired by such broker-dealer as a result of market-making activities or
other trading activities. The Issuers and the Guarantor Subsidiaries have agreed
that, for a period of 180 days after the Expiration Date (as defined herein),
they will make this Prospectus available to any broker-dealer for use in
connection with any such resale. See "Plan of Distribution".
51
ANNEX B TO EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
Each broker-dealer that receives Exchange Notes for its own account
in exchange for Notes, where such Notes were acquired by such broker-dealer as a
result of market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such Exchange
Notes. See "Plan of Distribution."
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52
ANNEX C TO EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Notes where such Notes were acquired as a result of market-making
activities or other trading activities. The Issuers and the Guarantor
Subsidiaries have agreed that, for a period of 180 days after the Expiration
Date, they will make this prospectus, as amended or supplemented, available to
any broker-dealer for use in connection with any such resale. In addition, until
___________________, 1998, all dealers effecting transactions in the Exchange
Notes may be required to deliver a prospectus.(1)
None of the Issuers or the Guarantor Subsidiaries will receive any
proceeds from any sale of Exchange Notes by broker-dealers. Exchange Notes
received by broker-dealers for their own account pursuant to the Registered
Exchange Offer may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of
options on the Exchange Notes or a combination of such methods of resale, at
market prices prevailing at the time of resale, at prices related to such
prevailing market prices or at negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer or the purchasers of any such Exchange Notes. Any broker-dealer
that resells Exchange Notes that were received by it for its own account
pursuant to the Registered Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Notes may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit on any
such resale of Exchange Notes and any commission or concessions received by any
such persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that, by acknowledging that it will
deliver and by delivering a prospectus, a broker-dealer will not be deemed to
admit that it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date, the Issuers and
the Guarantor Subsidiaries will promptly send additional copies of this
Prospectus and any amendment or supplement to this Prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal. The
Issuers and the Guarantor Subsidiaries have agreed to pay all expenses incident
to the Registered Exchange Offer (including the expenses of one counsel for the
Holders of the Notes) other than commissions or concessions of any
broker-dealers and will indemnify the Holders of the Notes (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
--------
1 In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Registered Exchange Offer prospectus.
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53
ANNEX D TO EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
|_| CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE
10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name: ________________________________________
Address: ________________________________________
________________________________________
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Notes. If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Notes that were acquired as a result of
market-making activities or other trading activities, it acknowledges that it
will deliver a prospectus in connection with any resale of such Exchange Notes;
however, by so acknowledging and by delivering a prospectus, the undersigned
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.
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54
ANNEX B
FORM OF OPINION AND LETTER OF
XXXXXXXX & XXXXXXXX TO BE
DELIVERED PURSUANT TO
SECTION 5(d)
55
ANNEX C
FORM OF OPINION OF XXXXXXX & XXXXXXX LLP
TO BE DELIVERED PURSUANT TO
SECTION 5(e)
56
ANNEX D
FORM OF OPINION OF GENERAL COUNSEL OF IRIDIUM
TO BE DELIVERED PURSUANT TO
SECTION 5(f)
57
ANNEX E
FORM OF CERTIFICATE OF
VICE PRESIDENT OF MOTOROLA
TO BE DELIVERED PURSUANT TO
SECTION 5(l)
