1
EXHIBIT 4.2
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IRIDIUM LLC
IRIDIUM CAPITAL CORPORATION
14% Senior Notes due 2005, Series B
Guaranteed by Iridium Roaming LLC
and Iridium IP LLC
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SERIES B NOTE INDENTURE
Dated as of July 16, 1997
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State Street Bank and
Trust Company,
Trustee
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TABLE OF CONTENTS
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RECITALS OF THE ISSUERS
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.02. Other Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 1.03. Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 1.04. Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE II
The Series B Notes
SECTION 2.01. Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.02. Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.03. Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.04. Paying Agent To Hold Money in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.05. Holder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.06. Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.07. Replacement Series B Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 2.08. Outstanding Series B Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.09. Temporary Series B Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.10. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.11. Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 2.12. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 2.13. Book-Entry Provisions for Global Series B Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 2.14. Special Transfer Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 3.02. Selection of Securities to be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 3.03. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 3.04. Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 3.05. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 3.06. Series B Notes Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
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SECTION 3.07. Optional Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE IV
Covenants
SECTION 4.01. Payment of Series B Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 4.02. SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 4.03. Limitation on Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 4.04. Limitation on Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 4.05. Limitation on Restrictions on Distributions
from Restricted Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 4.07. Limitation on Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 4.08. Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 4.09. Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 4.10. [Reserved] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 4.11. Limitation on the Sale or Issuance of Capital
Stock of Restricted Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 4.12. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 4.13. Limitation on Lines of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 4.14. Limitation on Business Activities of Capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 4.15. Future Guarantor Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 4.16. Maintenance of Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE V
Successor Companies
SECTION 5.01. When Issuers May Merge or Transfer Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 6.02. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 6.03. Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 6.04. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 6.05. Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 6.06. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 6.07. Rights of Holders to Receive Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
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SECTION 6.08. Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 6.09. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 6.10. Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 6.11. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 6.12. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 6.13. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 7.02. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 7.03. Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 7.04. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 7.05. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 7.06. Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 7.07. Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 7.08. Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 7.09. Successor Trustee by Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 7.10. Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 7.11. Preferential Collection of Claims Against Issuers . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Series B Notes; Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 8.02. Conditions to Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 8.03. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 8.04. Repayment to Note Issuers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 8.05. Indemnity for Government Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 8.06. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 9.02. With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 9.03. Compliance with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 9.04. Revocation and Effect of Consents and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
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SECTION 9.05. Notation on or Exchange of Series B Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 9.06. Trustee To Sign Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE X
Subsidiary Guarantees
SECTION 10.01. Subsidiary Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 10.02. Limitation on Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 10.03. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 10.04. No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 10.05. Modification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 10.06. Initial Guarantors; Execution of Supplemental Indenture for Future Guarantor Subsidiaries . . . . . . . 75
ARTICLE XI
Miscellaneous
SECTION 11.01. Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 11.02. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 11.03. Communication by Holders with Other Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 11.04. Certificate and Opinion as to Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 11.05. Statements Required in Certificate or Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 11.06. When Series B Notes Disregarded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 11.07. Rules by Trustee Paying Agent and Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 11.08. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 11.09. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 11.10. No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 11.11. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 11.12. Multiple Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 11.13. Table of Contents; Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Exhibit A - Form of Face of Initial Series B Note
Exhibit B - Form of Face of Exchange Series B Note
Exhibit C - Form of Certificate to be Delivered upon Termination of
Regulation S Restricted Period
Exhibit D - Form of Certificate to be Delivered in Connection with Transfers
to Non-QIB Institutional Accredited Investors
Exhibit E - Form of Certificate for Transfer to Rule 144A Global Series B
Notes
Exhibit F - Form of Certificate to be Delivered in Connection with Transfers
Pursuant to Regulation S
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Exhibit G - Form of Supplemental Indenture
Schedule I - Other Existing Affiliate Agreements
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.02; 4.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.09
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05; 11.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316 (a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.06
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
8
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.01
N.A. means Not Applicable.
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
9
INDENTURE dated as of July 16, 1997, among IRIDIUM LLC, a Delaware
limited liability company ("Iridium"), IRIDIUM CAPITAL CORPORATION, a Delaware
corporation ("Capital" and, together with Iridium, the "Note Issuers"), as
joint and several obligors, IRIDIUM ROAMING LLC and IRIDIUM IP LLC, as
guarantors hereunder (the "Initial Guarantors", and together with the Note
Issuers, the "Issuers") and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts bank and trust company (the "Trustee").
Each party agrees as follows for the benefit of the other parties
and for the equal and ratable benefit of the Holders of the Note Issuers' 14%
Senior Notes due 2005, Series B (the "Initial Series B Notes") and, when and
if issued pursuant to a registered exchange for Initial Series B Notes, the
Note Issuers' 14% Senior Notes due 2005, Series B (the "Exchange Series B
Notes") and, if and when issued pursuant to a Private Exchange for Initial
Series B Notes, the Note Issuers' 14% Senior Notes due 2005, Series B (the
"Private Exchange Series B Notes", and, together with the Exchange Series B
Notes and the Initial Series B Notes, the "Series B Notes").
RECITALS OF THE ISSUERS
The Issuers have duly authorized the execution and delivery of this
Indenture to provide for the issuance of $500,000,000 aggregate principal
amount of the Initial Series B Notes issuable as provided in this Indenture.
Pursuant to the terms of a Purchase Agreement dated July 11, 1997 (the
"Purchase Agreement") among the Issuers, Iridium World Communications Ltd.
("IWCL"), Chase Securities Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, the Note Issuers have agreed to issue and sell up to
$500,000,000 aggregate principal amount of the Initial Series B Notes and
300,000 units (the "Units"), each Unit consisting of $1000 principal amount of
the 13% Senior Notes due, Series A (the "Initial Series A Notes") and one
warrant (the "Warrants"), which represents the right to purchase 5.2 shares
(the "Warrant Shares") of Class A Common Stock, par value $0.01 per share (the
"Class A Common Stock"), of IWCL, issuable pursuant to the terms of a Warrant
Agreement dated as of July 16, 1997 (the "Warrant Agreement") between IWCL and
State Street Bank and Trust Company, as the warrant agent (the "Warrant
Agent"). All things necessary to make this Indenture a valid agreement of the
Issuers, in accordance with its terms, have been done, and the Issuers have
done all things necessary to make the Series B Notes, when executed by the
Issuers and authenticated and delivered by the Trustee hereunder and duly
issued by the Issuers, the valid obligations of the Issuers as hereinafter
provided.
For and in consideration of the premises and the purchase of the
Series B Notes by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders, as follows:
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ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Acquired Indebtedness" means, with respect to any specified Person,
(i) Indebtedness of any other Person existing at the time such Person merges
with or into or consolidates with or becomes a Restricted Subsidiary of such
specified Person and (ii) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person, which Indebtedness or Lien was not Incurred
in anticipation of, and was outstanding prior to, such merger, consolidation
or acquisition.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether
through the ownership of Voting Stock, by contract or otherwise; provided,
however, that beneficial ownership of 10% or more of the Voting Stock of a
Person shall be deemed to be control. The terms "controlling" and
"controlled" have meanings correlative to the foregoing. Notwithstanding the
foregoing, (a) no individual shall be an Affiliate of Iridium solely by reason
of his or her being a director, officer or employee of IWCL, Iridium or any
Subsidiary of either and (b) none of the Restricted Subsidiaries shall be
Affiliates of Iridium.
"Agreement Regarding Guarantee" means the Agreement Regarding
Guarantee between Iridium and Motorola, dated as of August 21, 1996, as
amended and restated as of July 11, 1997, and as further amended from time to
time.
"Asset Disposition" means any transfer, conveyance, sale, lease or
other disposition (collectively, any "disposition") by Iridium or any
Restricted Subsidiary (including any disposition by means of a consolidation,
merger or similar transaction) but excluding a disposition by a Restricted
Subsidiary to Iridium or a Wholly-Owned Restricted Subsidiary or by Iridium to
a Wholly-Owned Restricted Subsidiary of (i) shares of Capital Stock of a
Restricted Subsidiary, (ii) all or substantially all of the assets of Iridium
or any Restricted Subsidiary representing a division or line of business or
(iii) other assets or rights of Iridium or any of its Restricted Subsidiaries
other than a disposition (a) in the ordinary course of business, (b) that
constitutes a Restricted Payment which is permitted under Section 4.04,
(c) that is subject to Article V herein, or (d) that constitutes the grant,
establishment or exercise of any Lien permitted pursuant to Section 4.12;
provided, however, that a transaction described in clauses (i), (ii) and
(iii) shall constitute an Asset Disposition only to the extent that the
aggregate consideration for all such transfers, conveyances, sales, leases or
other dispositions exceeds $10,000,000 in any 12-month period.
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"Attributable Indebtedness" in respect of a Sale and Leaseback
Transaction means, as at the time of determination, the present value
(discounted at the interest rate borne by the Series B Notes, compounded
annually) of the total obligations of the lessee for rental payments during
the remaining term of the lease included in such Sale and Leaseback
Transaction (including any period for which such lease has been extended).
"Average Life" means, as of the date of determination, with respect
to any Indebtedness, the quotient obtained by dividing (i) the sum of the
products of the numbers of years from the date of determination to the dates
of each successive scheduled principal payment of such Indebtedness (or
scheduled redemption or similar payment with respect to Disqualified Stock)
multiplied by the amount of such payment by (ii) the sum of all such payments.
"Bank Credit Agreement" means any one or more credit agreements
(which may include or consist of revolving credit agreements or similar
arrangements) between Iridium and/or any Subsidiary and one or more banks or
other financial institutions providing financing for the business of Iridium
and its Subsidiaries. The Guaranteed Bank Facility shall be, and the Secured
Bank Facility (when executed and delivered by all the parties thereto) shall
be, Bank Credit Agreements.
"Board of Directors" means the Board of Directors of Iridium or any
committee thereof duly authorized to act on behalf of such Board.
"Build-out" means the construction, acquisition, improvement,
operation and development (including all costs related thereto) of the IRIDIUM
System up to the occurrence of Commercial Activation and the construction,
acquisition, improvement and development (including all costs related thereto)
thereafter of contemplated enhancements to the IRIDIUM System described in the
Offering Memorandum.
"Business Day" means a day other than a Saturday, Sunday or other
day on which banking institutions in Massachusetts and New York State are
authorized or required by law to close.
"Capital" means Iridium Capital Corporation, a Delaware corporation,
and any successor Person to Capital.
"Capital Lease Obligation" means an obligation that is required to
be classified and accounted for as a capitalized lease for financial reporting
purposes in accordance with GAAP. The amount of Indebtedness represented by a
Capital Lease Obligation will be the capitalized amount of such obligation
determined in accordance with GAAP, and the Stated Maturity thereof will be
the date of the last scheduled payment of rent or any other amount due under
the relevant lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty.
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"Capital Stock" of any Person means (i) in the case of a
corporation, corporate stock issued by such Person, (ii) in the case of an
association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock issued by
such Person, (iii) in the case of a partnership, partnership interests
(whether general or limited) issued by such Person, (iv) in the case of a
limited liability company, membership interests issued by such Person, (v) any
other interest or participation that confers on another Person the right to
receive a share of the profits and losses of, or distributions of assets of,
the issuing Person, and (vi) any rights (other than debt securities
convertible into, or exchangeable for, Capital Stock), warrants or options to
purchase any of the foregoing.
"Change of Control" means the occurrence of any of the following:
(a) one or more Dispositions which cause the amount of Capital
Stock of Iridium held directly by Motorola to be reduced by more than 50%
as compared to its direct holding of Capital Stock in Iridium as of the
Issue Date (in each such case without giving effect to any rights,
warrants or options to purchase Capital Stock of Iridium, unless
exercised prior thereto);
(b) the first day on which Iridium fails to own, of record and
beneficially, 100% of the Capital Stock of Capital (other than directors'
qualifying shares);
(c) any sale, lease, or other transfer (in one transaction or in a
series of related transactions) is made by Iridium or its Restricted
Subsidiaries of all or substantially all of the assets of Iridium and its
Restricted Subsidiaries to any Person (other than in connection with the
Asset Drop-Down Transaction (as defined in Section 5.01(b)); or
(d) the adoption of a plan relating to the liquidation or
dissolution of Iridium or Capital.
Notwithstanding the foregoing, a Change in Control shall not be deemed to
result from (x) the acquisition by IWCL, Motorola or any wholly-owned
subsidiary of Motorola of substantially all the assets of Iridium, (y) the
Asset Drop-Down Transaction or any transfer of assets or merger reversing the
Asset-Drop-Down Transaction, or (z) the merger of Iridium with and into IWCL,
Motorola or any wholly-owned subsidiary of Motorola.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commercial Activation" means the date on which Iridium commences
generally available commercial service on the IRIDIUM System.
"Consolidated Cash Flow" of Iridium means for any period the
Consolidated Net Income of Iridium and the consolidated Restricted
Subsidiaries for such period increased by
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(i) Consolidated Interest Expense of Iridium and the consolidated Restricted
Subsidiaries for such period, plus (ii) Consolidated Income Tax Expense of
Iridium and the consolidated Restricted Subsidiaries for such period, plus
(iii) the consolidated depreciation and amortization expense included in the
income statement of Iridium and the consolidated Restricted Subsidiaries for
such period (including any depreciation of any asset that represents
depreciation in respect of previously capitalized interest), plus (iv) other
non-cash charges of Iridium and the consolidated Restricted Subsidiaries for
such period deducted from consolidated revenues in determining Consolidated
Net Income for such period, minus (v) non-cash items of Iridium and the
consolidated Restricted Subsidiaries for such period which increased
consolidated revenues in determining Consolidated Net Income for such period,
minus (vi) the consolidated amortization expense related to payments made by
Iridium and the Restricted Subsidiaries to Motorola pursuant to the Operations
and Maintenance Contract included in the income statement of Iridium and the
consolidated Restricted Subsidiaries for such period.
"Consolidated Income Tax Expense" of any Person means for any period
the consolidated provision for income taxes of such Person and its
consolidated Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP or, so long as such Person is
treated as a partnership or other pass through entity for United States
federal income tax purposes, the Tax Amount paid by such Person during such
period.
"Consolidated Interest Expense" for any Person means for any period
the consolidated interest expense included in a consolidated income statement
(without deduction of interest income) of such Person and its consolidated
Restricted Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP, including without limitation or duplication (or, to the
extent not so included, with the addition of), (i) the amortization of
Indebtedness discounts; (ii) any payments or fees with respect to letters of
credit, bankers' acceptances or similar facilities; (iii) fees with respect to
Interest Rate or Currency Protection Agreements; (iv) Preferred Stock
dividends of such Person (other than with respect to Disqualified Stock)
declared and paid or payable; (v) accrued Disqualified Stock dividends of such
Person and all Restricted Subsidiaries of such Person, whether or not declared
or paid; (vi) interest on Indebtedness Guaranteed by such Person; (vii) the
portion of any rental obligation allocable to interest expense; and
(viii) capitalized interest.
"Consolidated Net Income" of any Person means for any period the
consolidated net income (or loss) of such Person and its consolidated
Restricted Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP; provided, however, that there is excluded therefrom (to
the extent not already excluded therefrom) (i) the net income (or loss) of any
Person acquired by such Person or a Restricted Subsidiary of such Person in a
pooling-of-interests transaction for any period prior to the date of such
transaction, (ii) the net income (but not the net loss) of any Restricted
Subsidiary of such Person which Restricted Subsidiary is subject to
restrictions which prevent the payment of dividends or the making of
distributions to such Person, but only to the extent of such restrictions,
(iii) the net income (or
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loss) of any Person that is not a Restricted Subsidiary (including any
Unrestricted Subsidiary) except to the extent of the amount of dividends or
other distributions actually paid to such Person by such other Person during
such period, (iv) gains or losses on Asset Dispositions by Iridium or any
Restricted Subsidiary, (v) all extraordinary gains and losses, (vi) the
cumulative effect of changes in accounting principles in the year of adoption
of such changes, (vii) non-cash gains or losses resulting from fluctuations in
currency exchange rates, and (viii) the tax effect of any of the items
described in clauses (i) through (vii) above; provided further, however, that
for purposes of any determination pursuant to Section 4.04, there shall be
deducted from the Consolidated Net Income of Iridium and the Restricted
Subsidiaries for such period an amount equal to the Tax Amount paid by Iridium
during such period.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person and its consolidated Restricted
Subsidiaries determined on a consolidated basis in accordance with GAAP, less
amounts attributable to Disqualified Stock of such Person; provided, however,
that, with respect to Iridium, adjustments following the date of the Indenture
to the accounting books and records of Iridium in accordance with Accounting
Principles Board Opinions Nos. 16 and 17 (or successor opinions thereto) or
otherwise resulting from the acquisition of control of Iridium by another
Person shall not be given effect to.
"Consolidation" means the consolidation of the accounts of each of
the Restricted Subsidiaries with those of the Issuers in accordance with GAAP
consistently applied; provided, however, that "Consolidation" shall not
include consolidation of the accounts of any Unrestricted Subsidiary, but the
interest of the Issuers or any Restricted Subsidiary in an Unrestricted
Subsidiary shall be accounted for as an investment. The term "Consolidated"
or "consolidated" has a correlative meaning.
"Debt to Capital Ratio" means on any date of determination for
Iridium and its Restricted Subsidiaries, on a consolidated basis, the ratio
(expressed as a percentage) of Outstanding Indebtedness on such date to Total
Invested Capital on such date.
"Debt to Cash Flow Ratio" means on any date of determination (the
"Determination Date") for Iridium and its Restricted Subsidiaries, on a
consolidated basis, the ratio of Outstanding Indebtedness on the Determination
Date to Consolidated Cash Flow for the four most recently completed fiscal
quarters immediately preceding the Determination Date (the "Measurement
Period") determined on a pro forma basis as if any Indebtedness to be Incurred
had been Incurred and the proceeds thereof had been applied on the first day
of the Measurement Period; provided, however, that in making such
computations, (i) the Consolidated Interest Expense attributable to interest
on any proposed Indebtedness bearing a floating interest rate shall be
computed on a pro forma basis as if the rate in effect on such Determination
Date had been the applicable rate for the entire Measurement Period, (ii) the
Consolidated Interest Expense attributable to interest on any Indebtedness
under a revolving credit facility shall be computed based upon the average
daily balance of such Indebtedness during such Measurement Period,
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(iii) in the event Iridium or any of its Restricted Subsidiaries has made
asset dispositions or acquisitions of assets not in the ordinary course of
business (including acquisitions of other Persons by merger, consolidation or
purchase of Capital Stock) or has repaid Indebtedness or Incurred additional
Indebtedness during or after such Measurement Period, such computation shall
be made on a pro forma basis as if the asset dispositions, acquisitions,
repayment or incurrence had taken place on the first day of such Measurement
Period, (iv) the net proceeds of the Indebtedness to be Incurred shall be
deemed to have been applied on the first day of such Measurement Period to
acquire direct obligations of the United States government having a maturity
most closely approximating the maturity of the Indebtedness to be incurred (or
Indebtedness incurred during or after such Measurement Period); provided,
however, that the adjustment in this clause (iv) shall not be made if, and to
the extent, that application of such net proceeds has otherwise been fully
reflected in the computation, and (v) the actual application of the net
proceeds of Indebtedness Incurred during or after such Measurement Period
shall be given pro forma effect as if such application had taken place on the
first day of such Measurement Period.
"Default" means an event that is, or after the passing of time or
the giving of notice or both would be, an Event of Default.
"Definitive Series B Notes" means Series B Notes that are in the
form of Exhibit A or Exhibit B attached hereto that do not include the
information called for by footnote 1 thereof.
"Depositary" means, with respect to the Series B Notes issuable or
issued in whole or in part in global form, the Person specified in Section
2.03 as the Depositary with respect to the Series B Notes, until a successor
shall have been appointed and becomes such pursuant to the applicable
provisions of this Indenture, and thereafter, "Depositary" shall mean or
include such successor.
"Disposition" means (i) the sale, transfer or other conveyance by
Motorola or any of its Subsidiaries (other than to a wholly owned Subsidiary
of Motorola) of (a) Iridium's membership interests or (b) equity interests in
any entity (an "intermediate entity") which owns, directly or indirectly,
Iridium's membership interests or (ii) the issue and sale by any such
intermediate entity of its equity securities to one or more third parties if
and to the extent the proceeds of such issue and sale are distributed by such
intermediate entity to Motorola or any of its Subsidiaries.
"Disqualified Stock" of any Person means any Capital Stock of such
Person which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder
thereof), or upon the happening of any event, (i) matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, (ii) is
convertible or exchangeable for Indebtedness or Disqualified Stock, or
(iii) is redeemable at the
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option of the holder thereof, in whole or in part, in each case on or prior to
the earlier of the Stated Maturity of the Series B Notes or the date on which
no Series B Notes remain outstanding. Disqualified Stock does not include any
Capital Stock that is not otherwise Disqualified Stock if by its terms the
holders have the right to require the issuer to repurchase such stock upon a
Change of Control (or upon events substantially similar to a Change of
Control).
"Eligible Institution" means a commercial banking institution that
has combined capital and surplus of not less than $500 million or its
equivalent in foreign currency, whose debt is rated "A-3" or higher or "A-" or
higher according to Xxxxx'x Investors Service, Inc. or Standard & Poor's
Ratings Group (or such similar equivalent rating by at least one "nationally
recognized statistical rating organization" (as defined in Rule 436 under the
Securities Act)) respectively, at the time as of which any investment or
rollover therein is made.
"Equity Offering" means an offering made on a primary basis of
Capital Stock (other than Disqualified Stock) of IWCL or Iridium that results
in Net Cash Proceeds to IWCL or Iridium, as the case may be, provided,
however, if any such offering is an offering of the Capital Stock of IWCL only
the Net Cash Proceeds thereof that are contributed to Iridium shall be taken
into consideration for the purposes of this definition.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
(or any successor act) and the rules and regulations thereunder.
"Exchange and Registration Rights Agreement" means the Exchange and
Registration Rights Agreement dated as of July 16, 1997 by and among the
Issuers and the Initial Purchasers, as such agreement may be amended,
modified, or supplemented from time to time in accordance with the terms
thereof.
"Exchange Offer" shall have the meaning set forth in the Exchange
and Registration Rights Agreement.
"Exchange Offer Registration Statement" means the registration
statement to be filed by the Issuers with the SEC with respect to an offer to
exchange the Initial Series B Notes for another series of notes of the Issuers
with substantially identical terms to the Initial Series B Notes.
"Existing Affiliate Agreements" means (i) the Space System Contract,
(ii) the Terrestrial Network Development Contract, (iii) the Operations and
Maintenance Contract, (iv) the Agreement Regarding Guarantee, (v) the Master
Subscription Agreement, (vi) the Interest Exchange Agreement, (vii) the Share
Issuance Agreement, (viii) the Management Services Agreement, (ix) the
agreement or agreements among Iridium, Motorola and other parties thereto
providing for the development, manufacture and sale of individual subscriber
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equipment to be used in the IRIDIUM System, which agreement or agreements are
to be executed and delivered after the Issue Date as a condition to borrowings
under the Secured Bank Facility, (x) the Motorola MOU and any subordination
agreement entered into pursuant thereto, and (xi) any other agreements with
Affiliates or Related Persons of Iridium, existing on the Issue Date and
listed on Schedule I to this Indenture.
"Foreign Subsidiary" means, with respect to any Person, any
Subsidiary of such Person which is incorporated or otherwise organized under
the laws of any jurisdiction other than the United States of America, any
state thereof or the District of Columbia and substantially all of whose
consolidated assets are located primarily outside of the United States of
America.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the Issue Date, including those set forth
in (i) the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants, (ii) statements and
pronouncements of the Financial Accounting Standards Board, (iii) such other
statements by such other entity as approved by a significant segment of the
accounting profession and (iv) the rules and regulations of the SEC governing
the inclusion of financial statements (including pro forma financial
statements) in periodic reports required to be filed pursuant to Section 13 of
the Exchange Act, including opinions and pronouncements in staff accounting
bulletins and similar written statements from the accounting staff of the SEC.
All ratios and computations based on GAAP contained in the Indenture shall be
computed in conformity with GAAP.
"Global Note" means a Series B Note that is in the form of Exhibit A
or Exhibit B hereto that includes the information called for by footnote 1
thereof.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which
obligations or guarantee the full faith and credit of the United States is
pledged and which have a remaining weighted Average Life to maturity of not
more than one year from the date of Investment therein.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any other
Person (the "primary obligor") through an agreement enforceable by or for the
benefit of the holder of such Indebtedness and any such obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness,
(ii) to purchase property, securities or services for the purpose of assuring
the holder of such Indebtedness of the payment of such Indebtedness, (iii) to
maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness, or (iv) to act as a co-obligor with such
Person on its Indebtedness (and "Guaranteed" and "Guaranteeing" shall have
meanings correlative to the foregoing); provided,
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however, that the Guarantee by any Person shall not include endorsements by
such Person for collection or deposit, in either case, in the ordinary course
of business.
"Guaranteed Bank Facility" means the credit facility established by
the credit agreement dated as of August 21, 1996 by and among Iridium and
certain lenders providing for an unsecured $750 million revolving credit
facility, as amended from time to time.
"Guarantor Subsidiary" means any Person that has issued a Subsidiary
Guaranty by execution and delivery of this Indenture, including each of the
Initial Guarantors.
"Holders" means the registered holders from time to time of the
Series B Notes.
"IAI" means an institutional "accredited investor" as described in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Incur" means, with respect to any Indebtedness or other obligation
of any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, Guarantee or otherwise become liable in respect of such Indebtedness
or other obligation including by acquisition of Subsidiaries or the recording,
as required pursuant to GAAP or otherwise, of any such Indebtedness or other
obligation on the balance sheet of such Person (and "Incurrence", "Incurred"
and "Incurring" have meanings correlative to the foregoing); provided,
however, that a change in GAAP that results in an obligation of such Person
that exists at such time becoming Indebtedness shall not be deemed an
Incurrence of such Indebtedness and that neither the accrual of interest nor
the accretion of original issue discount shall be deemed an Incurrence of
Indebtedness. Notwithstanding the foregoing, Iridium may elect to treat all
or any portion of revolving credit debt of Iridium or a Subsidiary as being
Incurred from and after any date beginning the date the revolving credit
commitment is extended to Iridium or a Subsidiary, by furnishing notice
thereof to the Trustee, and any borrowings or reborrowings by Iridium or a
Subsidiary under such commitment up to the amount of such commitment
designated by Iridium as Incurred shall not be deemed to be new Incurrences of
Indebtedness by Iridium or such Subsidiary; provided, however, that in such
event the undrawn portion of any such revolving credit debt shall be deemed to
be outstanding Indebtedness until such time as the commitment thereunder is
terminated. The accretion of principal of a non-interest bearing or other
discount security shall not be deemed the Incurrence of Indebtedness.
"Indebtedness" means (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person
and whether or not contingent, (i) every obligation of such Person for money
borrowed, (ii) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including any such obligations Incurred in
connection with the acquisition of property, assets or businesses, (iii) every
reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
Person, (iv) every obligation of such Person issued or
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assumed as the deferred purchase price of property or services (including
securities repurchase agreements but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business which are not
overdue by more than 30 days or which are being contested in good faith),
(v) every Capital Lease Obligation of such Person, (vi) all Receivables Sales
of such Person, together with any obligation of such Person to pay any
discount, interest, fees, indemnities, penalties, recourse, expenses or other
amounts in connection therewith, (vii) all obligations to redeem or repurchase
outstanding Disqualified Stock issued by such Person, (viii) all Attributable
Indebtedness, (ix) every obligation under Interest Rate or Currency Protection
Agreements of such Person, (x) every obligation of the type referred to in
clauses (i) through (ix) of another Person secured by any Lien on any property
or asset of such Person (whether or not such obligation is assumed by such
Person), the amount of such obligation being deemed to be the lesser of the
fair market value of such property or assets and the amount of the obligation
so secured and (xi) every obligation of the type referred to in clauses (i)
through (x) of another Person and all dividends of another Person the payment
of which, in either case, such Person has Guaranteed. The "amount" or
"principal amount" of Indebtedness at any time of determination as used herein
represented by (a) any Indebtedness issued at a price that is less than the
principal amount at maturity thereof, shall be the amount of the liability in
respect thereof determined in accordance with GAAP, (b) any Receivables Sale,
shall be the amount of the unrecovered capital or principal investment of the
purchaser (other than Iridium or a Wholly-Owned Restricted Subsidiary)
thereof, excluding amounts representative of yield or interest earned on such
investment, (c) any Disqualified Stock, shall be the maximum fixed redemption
or repurchase price in respect thereof, (d) any Capital Lease Obligation,
shall be determined in accordance with the definition thereof and (e) any
Permitted Interest Rate or Currency Protection Agreement, shall be zero. In
no event shall Indebtedness include any liability for taxes. For purposes of
determining any particular amount of Indebtedness, Guarantees or Liens with
respect to letters of credit supporting Indebtedness otherwise included in the
determination of a particular amount shall not be included. The term
"Indebtedness" does not include any obligations of Iridium or any Restricted
Subsidiary (x) under the Space System Contract, the Operations and Maintenance
Contract or the Terrestrial Network Development Contract (including any agreed
upon deferrals of payment obligations thereunder) or (y) in respect of amounts
owing to gateway operators and other service providers in connection with the
clearinghouse system to be established and operated by Iridium (as described
under "Business--The IRIDIUM System--Business Support Systems" in the Offering
Memorandum).
"Independent Financial Advisor" means an accounting, appraisal or
investment banking firm of nationally recognized standing that is, in the
judgment of the Board of Directors, qualified to perform the task for which it
has been engaged and disinterested and independent with respect to the Note
Issuers and their Subsidiaries and Affiliates.
"Indenture" means this Indenture as amended or supplemented from
time to time.
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"Initial Guarantors" means Iridium Roaming LLC and Iridium IP LLC,
each a Delaware limited liability company.
"Initial Purchasers" means Chase Securities Inc. and Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated.
"Interest Exchange Agreement" means the Interest Exchange Agreement
among Iridium and IWCL, dated June 9, 1997, as amended from time to time.
"Interest Rate or Currency Protection Agreement" of any Person means
any forward contract, futures contract, swap, option or other financial
agreement or arrangement (including, without limitation, caps, floors, collars
and similar agreements) relating to, or the value of which is dependent upon,
interest rates or currency exchange rates or indices.
"Investment" by any Person means any direct or indirect loan,
advance or other extension of credit or capital contribution (by means of
transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise) to, or purchase or
acquisition of Capital Stock, bonds, notes, debentures or other securities or
evidence of Indebtedness issued by, any other Person, including any payment on
a Guarantee of any obligation of such other Person, but excluding any loan,
advance or extension of credit to an employee of Iridium or any Restricted
Subsidiary in the ordinary course of business, accounts receivable and other
commercially reasonable extensions of trade credit. A delay in the purchase
of any of Iridium's Capital Stock under a purchase or similar agreement shall
not be deemed to be an Investment by Iridium in the purchaser.
"Investment Grade Rating" means a rating equal to or higher than
"Baa3" (or the equivalent) by Xxxxx'x Investors Service, Inc. (or any
successor to the rating agency business thereof) and "BBB-" (or the
equivalent) by Standard & Poor's Ratings Group (or any successor to the rating
agency business thereof).
"Iridium" means Iridium LLC, a Delaware limited liability
corporation, and any successor Person to Iridium.
"IRIDIUM System" means Iridium's global mobile wireless
communications system as described in the Offering Memorandum.
"Issue Date" means the date on which the Series B Notes are first
issued and delivered.
"Issuers" means the parties named as such in this Indenture until a
successor replaces one or more of such parties pursuant to the applicable
provisions of this Indenture and, thereafter, includes such successor and, for
purposes of any provision contained herein and
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required by the TIA, each other obligor on the indenture securities (within
the meaning of the TIA). In particular, upon execution and delivery of this
Indenture, the "Issuers" shall mean Iridium, Capital and the Initial
Guarantors.
"IWCL" means Iridium World Communication Ltd., a Bermuda company,
and any successor Person to Iridium.
"Lien" means, with respect to any property or assets, any mortgage
or deed of trust, pledge, hypothecation, assignment, Receivables Sale, deposit
arrangement, security interest, lien, charge, easement (other than any
easement not materially impairing usefulness or marketability), encumbrance,
preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever on or with respect to such property or assets
(including, without limitation, any conditional sale or other title retention
agreement having substantially the same economic effect as any of the
foregoing or any Sale and Leaseback Transaction).
"Liquidated Damages" shall have the meaning set forth in the
Exchange and Registration Rights Agreement.
"LLC Agreement" means the Limited Liability Company Agreement of
Iridium, dated as of July 29, 1996, as amended from time to time.
"Management Services Agreement" means the Management Services
Agreement between Iridium and IWCL, dated as of June 9, 1997, as amended from
time to time.
"Marketable Securities" means: (i) Government Securities; (ii) any
time deposit account, money market deposit and certificate of deposit maturing
not more than 270 days after the date of acquisition issued by, or time
deposit of, an Eligible Institution; (iii) commercial paper maturing not more
than 270 days after the date of acquisition issued by a corporation (other
than an Affiliate of Iridium) with a rating, at the time as of which any
investment therein is made, of "P-1" or higher according to Xxxxx'x Investors
Service, Inc. or "A-1" or higher according to Standard & Poor's Ratings Group
(or such similar equivalent rating by at least one "nationally recognized
statistical rating organization" (as defined in Rule 436 under the Securities
Act)); (iv) any banker's acceptances or money market deposit accounts issued
or offered by an Eligible Institution; (v) repurchase obligations with a term
of not more than seven days for Government Securities entered into with an
Eligible Institution; and (vi) any fund investing exclusively in investments
of the types described in clauses (i) through (v) above.
"Master Subscription Agreement" means the Agreement between Iridium
and IWCL, dated as of June 30, 1997, as amended from time to time.
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"Motorola" means Motorola, Inc., a Delaware corporation, and any
successor Person to Motorola.
"Motorola Additional Guarantee" means the commitment by Motorola
pursuant to the Motorola MOU to guarantee up to $350 million of Indebtedness
(inclusive of principal and interest), under the Guaranteed Bank Facility or
another credit agreement on identical terms, in excess of the Motorola
Guarantee.
"Motorola Guarantee" means the guarantee by Motorola of up to $750
million of Indebtedness under the Guaranteed Bank Facility.
"Motorola MOU" means the Memorandum of Understanding, dated as of
July 11, 1997, between Iridium and Motorola, as amended from time to time.
"Net Available Proceeds" from any Asset Disposition by any Person
means cash or Marketable Securities received (including by way of sale or
discounting of a note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquiror of Indebtedness or other obligations relating to such properties or
assets) therefrom by such Person, net of (i) all legal, title and recording
tax expenses, commissions and other fees and expenses Incurred and all
federal, state, provincial, foreign and local taxes (including taxes payable
upon payment or other distribution of funds from a foreign subsidiary to
Iridium or another Subsidiary of Iridium) required to be accrued as a
liability as a consequence of such Asset Disposition, (ii) all payments made
by such Person or its Restricted Subsidiaries on any Indebtedness which is
secured by such assets in accordance with the terms of any Lien upon or with
respect to such assets or which must by the terms of such Lien, or in order to
obtain a necessary consent to such Asset Disposition or by applicable law, be
repaid out of the proceeds from such Asset Disposition, (iii) all
distributions and other payments made to minority interest holders in
Restricted Subsidiaries of such Person or joint ventures as a result of such
Asset Disposition, (iv) appropriate amounts to be provided by such Person or
any Restricted Subsidiary thereof, as the case may be, as a reserve in
accordance with GAAP against any liabilities associated with such assets and
retained by such Person or any Restricted Subsidiary thereof, as the case may
be, after such Asset Disposition, including, without limitation, liabilities
under any indemnification obligations and severance and other employee
termination costs associated with such Asset Disposition, in each case as
determined by the Board of Directors, in its reasonable good faith judgment
evidenced by a resolution filed with the Trustee; provided, however, that any
reduction in such reserve within twelve months following the consummation of
such Asset Disposition will be treated for all purposes of this Indenture and
the Series B Notes as a new Asset Disposition at the time of such reduction
with Net Available Proceeds equal to the amount of such reduction, and (v) any
consideration for an Asset Disposition (which would otherwise constitute Net
Available Proceeds) that is required to be held in escrow pending
determination of whether a purchase price adjustment will be made, but amounts
under this
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clause (v) will become Net Available Proceeds at such time and to the extent
such amounts are released to such Person.
"Net Cash Proceeds," with respect to any issuance or sale of Capital
Stock, means the cash proceeds of such issuance or sale, net of attorneys'
fees, accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"Non-U.S. Person" means a Person who is not a U.S. Person, as such
term is defined in Rule 902 of the Securities Act.
"Offer to Purchase" means a written offer (the "Offer") sent by the
Note Issuers by first class mail, postage prepaid, to each Holder at his
address appearing in the note register on the date of the Offer offering to
purchase up to the principal amount of Series B Notes specified in such Offer
at the purchase price specified in such Offer (as determined in accordance
with Section 4.06 of this Indenture). Unless otherwise required by applicable
law, the Offer shall specify an expiration date (the "Expiration Date") of the
Offer to Purchase which shall be, subject to any contrary requirements of
applicable law, not less than 30 days or more than 60 days after the date of
such Offer and a settlement date (the "Purchase Date") for purchase of Series
B Notes within five Business Days after the Expiration Date. The Note Issuers
shall notify the Trustee in writing at least 15 Business Days (or such shorter
period as is acceptable to the Trustee) prior to the mailing of the Offer of
the Note Issuers' obligation to make an Offer to Purchase, and the Offer shall
be mailed by the Note Issuers or, at the Note Issuers' request, by the Trustee
in the name and at the expense of the Note Issuers. The Offer shall contain
information concerning the business of Iridium and its Subsidiaries which
Iridium in good faith believes shall enable such holders to make an informed
decision with respect to the Offer to Purchase (which at a minimum shall
include (i) the most recent annual and quarterly financial statements and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" contained in the documents required to be filed with the Trustee
pursuant to this Indenture (which requirements may be satisfied by delivery of
such documents together with the Offer), (ii) a description of material
developments in Iridium's business subsequent to the date of the latest of
such financial statements referred to in clause (i) (including a description
of the events requiring Iridium to make the Offer to Purchase), (iii) if
applicable, appropriate pro forma financial information concerning the Offer
to Purchase and the events requiring Iridium to make the Offer to Purchase and
(iv) any other information required by applicable law to be included therein).
The Offer shall contain all instructions and materials necessary to enable
such holders to tender Series B Notes pursuant to the Offer to Purchase.
"Offering Memorandum" means the offering memorandum, dated as of
July 11, 1997, relating to the offering of the Initial Series B Notes and
Units.
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"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President, the
Treasurer, the Secretary or any Assistant Secretary of such Person.
"Officers' Certificate" means a certificate signed by two Officers.
"Operations and Maintenance Contract" means the IRIDIUM System
Operations and Maintenance Contract between Iridium and Motorola, dated as of
July 29, 1993, as amended from time to time.
"Opinion of Counsel" means a written opinion from legal counsel who
is acceptable to the Trustee. The counsel may be an employee of or counsel to
Iridium.
"Outstanding Indebtedness" means the aggregate consolidated
principal amount (or the accreted value in the case of any Indebtedness issued
at a discount) of Indebtedness of Iridium and its Restricted Subsidiaries, on
a consolidated basis, outstanding as of the date of determination.
"pari passu", when used with respect to the ranking of any
Indebtedness of any Person in relation to other Indebtedness of such Person,
means that each such Indebtedness (a) either (i) is not subordinated in right
of payment to any other Indebtedness of such Person or (ii) is subordinate in
right of payment to the same Indebtedness of such Person as is the other and
is so subordinate to the same extent and (b) is not subordinate in right of
payment to the other or to any Indebtedness of such Person as to which the
other is not so subordinate.
"Permitted Interest Rate or Currency Protection Agreement" of any
Person means any Interest Rate or Currency Protection Agreement entered into
with one or more financial institutions that is designed to protect such
Person against fluctuations in interest rates or currency exchange rates with
respect to Indebtedness Incurred and which shall have a notional amount no
greater than the payments due with respect to the Indebtedness being hedged
thereby, or with respect to obligations or receivables denominated in foreign
currencies, and not for purposes of speculation.
"Permitted Investment" means an Investment by Iridium or any
Restricted Subsidiary (i) in any Person as a result of which such Person
becomes a Restricted Subsidiary, the primary business of which is to engage in
all or a portion of a Related Business, (ii) in Marketable Securities,
(iii) in Permitted Interest Rate or Currency Protection Agreements, (iv) made
as a result of the receipt of noncash consideration from an Asset Disposition
that was made pursuant to and in compliance with Section 4.06 herein,
(v) consisting of loans or advances to employees of Iridium or any Restricted
Subsidiary made in the ordinary course of business not to exceed $2,000,000 in
the aggregate outstanding at any one time and (vi) in any Person for a purpose
which is related, ancillary or complementary to the businesses of Iridium and
the
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Restricted Subsidiaries on the date such Investment is made; provided that the
aggregate amount of Investments made pursuant to this clause (vi) and then
outstanding does not exceed $100,000,000. The amount of Investments
outstanding pursuant to clause (vi) of the prior sentence shall be included in
the calculation of the aggregate amount of Restricted Payments made since the
Issue Date pursuant to Section 4.04.
"Permitted Liens" means:
(i) Prior to Commercial Activation, Liens to secure up to
$750,000,000 in principal amount of Indebtedness permitted to be
incurred pursuant to Section 4.03(b)(i);
(ii) After Commercial Activation, Liens to secure up to
$1,700,000,000 in principal amount of Indebtedness (inclusive of the
Indebtedness secured by the Liens described in clause (i) above and
any secured Indebtedness which refinanced such Indebtedness)
permitted to be Incurred pursuant to Section 4.03;
(iii) Liens in favor of Holders of the Series B Notes, the
Trustee, the holders of the Series A Notes and the trustee under the
Series A Indenture;
(iv) Liens in favor of the Issuers or a Wholly-Owned
Restricted Subsidiary;
(v) Liens on property at the time such Person or any of its
Subsidiaries acquires such property, including any acquisition by
means of a merger or consolidation with or into such Person or a
Subsidiary of such Person, other than any property delivered
pursuant to the Space System Contract or the Operations and
Maintenance Contract; provided, however, that such Liens are not
created, incurred or assumed in connection with, or in contemplation
of, such acquisition; provided further, however, that the Liens may
not extend to any other property owned by such Person or any of its
Subsidiaries;
(vi) other than in connection with Indebtedness, any Lien
arising in the ordinary course of business (a) to secure payments of
workers' compensation, unemployment insurance, pension or other
social security or retirement benefits, or to secure the performance
of bids, tenders, leases, progress payments, contracts (other than
for the payment of money) or to secure public or statutory
obligations of Iridium or any Restricted Subsidiary, or to secure
surety or appeal bonds to which Iridium or any Restricted Subsidiary
is a party, (b) imposed by law dealing with materialmen's,
mechanics', workmen's, repairmen's, warehousemen's landlords',
vendors' or carriers' Liens created by law, or deposits or pledges
which are not yet due or, if due, the validity of which is being
contested in good faith by
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Iridium or any Restricted Subsidiary by appropriate proceedings
promptly instituted and diligently conducted and against which
Iridium has established appropriate reserves in accordance with
GAAP, (c) rights of financial institutions to set off and chargeback
arising by operation of law, (d) rights, if any, of gateway
operators and other service providers to setoff and chargeback
arising under agreements between Iridium and any such Person in
respect of clearinghouse services provided by Iridium to such
Person, and (e) similar Liens;
(vii) servitudes, licenses, easements, encumbrances,
restrictions, rights-of-way and rights in the nature of easements or
similar charges which shall not in the aggregate materially
adversely impair the use of the subject property by Iridium or a
Restricted Subsidiary;
(viii) zoning and building by-laws and ordinances, municipal
bylaws and regulations, and restrictive covenants, which do not
materially interfere with the use of the subject property by Iridium
or a Restricted Subsidiary;
(ix) Liens to secure the performance of statutory obligations,
surety or appeal bonds, performance bonds or other obligations of a
like nature incurred in the ordinary course of business;
(x) Liens existing on the Issue Date;
(xi) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in
good faith by appropriate proceedings promptly instituted and
diligently concluded; provided, however, that any reserve or other
appropriate provision as shall be required in conformity with GAAP
shall have been made therefor;
(xii) any interest in or title of a lessor to any property
subject to a Capital Lease Obligation which is permitted under this
Indenture; and
(xiii) Liens incurred in the ordinary course of business of
the Issuers and the Restricted Subsidiaries with respect to
obligations that do not exceed $10,000,000 at any one time
outstanding and that:
(a) are not incurred in connection with the borrowing of
money or the obtaining of advances or credit (other than trade
credit in the ordinary course of business); and
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(b) do not in the aggregate materially detract from the
value of the property or materially impair the use thereof in
the operation of business by Iridium and the Restricted
Subsidiaries.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock" of any Person means Capital Stock of such Person
of any class or classes (however designated) that ranks prior, as to the
payment of dividends or as to the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding up of such Person, to shares
of Capital Stock of any other class of such Person.
"principal" of a Series B Note means the principal of the Series B
Note plus the premium, if any, payable on the Series B Note that is due or
overdue or is to become due at the relevant time.
"Private Exchange" means the offer by the Note Issuers, pursuant to
the Exchange and Registration Rights Agreement, to the Initial Purchasers to
issue and deliver to each Initial Purchaser, in exchange for the Initial
Series B Notes held by the Initial Purchaser as part of its initial
distribution, a like aggregate principal amount of Private Exchange Series B
Notes.
"Private Placement Legend" means the legend set forth under the
caption Restricted Series B Note Legend in the form of the Initial Series B
Note in Exhibit A hereto.
"Ratings Agencies" means Standard & Poor's Rating Group and Xxxxx'x
Investors Services, Inc. or any successor to the respective credit rating
businesses thereof.
"Receivables" means receivables, chattel paper, instruments,
documents or intangibles evidencing or relating to the right to payment of
money in respect of the sale of goods or services.
"Receivables Sale" of any Person means any sale of Receivables of
such Person (pursuant to a purchase facility or otherwise), other than (x) any
sale of Receivables by such Person as to which (i) such Person is neither
directly or indirectly liable (as guarantor or otherwise) nor provides credit
support of any kind and (ii) the purchaser of such Receivables has no recourse
to any assets or property of such Person or (y) in connection with a
disposition of the business operations of such Person relating thereto or a
disposition of defaulted Receivables for purpose of collection and not as a
financing arrangement.
"Refinance" means, in respect of any Indebtedness, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue
other Indebtedness in exchange or
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replacement for, such Indebtedness. "Refinanced" and "Refinancing" shall have
correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances any
Indebtedness of Iridium or any Restricted Subsidiary existing on the Issue
Date or Incurred in compliance with this Indenture, including Indebtedness
that Refinances Refinancing Indebtedness; provided, however, that except in
the case of a Refinancing of the Guaranteed Bank Facility after any extension
thereof (as contemplated by the Motorola MOU) (i) such Refinancing
Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the
Indebtedness being Refinanced, (ii) such Refinancing Indebtedness has an
Average Life at the time such Refinancing Indebtedness is Incurred that is
equal to or greater than the Average Life of the Indebtedness being
Refinanced, (iii) such Refinancing Indebtedness has an aggregate principal
amount (or if Incurred with original issue discount, an aggregate issue price)
that is equal to or less than the aggregate principal amount (or if Incurred
with original issue discount, the aggregate accreted value) then outstanding
or committed (plus accrued and unpaid interest and fees and expenses,
including any premium and defeasance costs) under the Indebtedness being
Refinanced and (iv) in the event the Indebtedness being Refinanced constitutes
a Subordinated Obligation, the Refinancing Indebtedness is subordinated to the
Series B Notes to at least the same extent as the Indebtedness being
Refinanced; provided further, however, that Refinancing Indebtedness shall not
include Indebtedness of the Issuers or a Restricted Subsidiary that Refinances
Indebtedness of an Unrestricted Subsidiary.
"Registered Exchange Offer" shall have the meaning set forth in the
Exchange and Registration Rights Agreement.
"Related Business" means the business of developing, owning,
engaging in and dealing with all or any part of the business of the provision
of telecommunications services and businesses and (i) reasonably related
extensions thereof, including but not limited to the manufacture, purchase,
ownership, operation, leasing, licensing, financing and selling of, and
generally dealing in or with, communications satellites, earth stations,
gateways, ground infrastructure and subscriber equipment, used or intended for
use with telecommunications services and businesses and (ii) any other
activities that are reasonably related to the provision of telecommunications
services and businesses.
"Related Person" of any Person means any other Person directly or
indirectly owning (a) 5% or more of the outstanding Capital Stock of such
Person or (b) 5% or more of the combined voting power of the Voting Stock of
such Person.
"Reserve Capital Call" means the agreement of each of Iridium's
members to purchase additional Class I Interests in Iridium pursuant to
Section 4.02 of the LLC Agreement.
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"Restricted Subsidiary" means any Subsidiary of Iridium, whether
existing on or after the Issue Date, unless such Subsidiary is an Unrestricted
Subsidiary.
"Sale and Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired by Iridium or a Restricted Subsidiary
whereby Iridium or such Restricted Subsidiary transfers such property to a
Person and Iridium or such Restricted Subsidiary leases it from such Person.
"SEC" means the Securities and Exchange Commission and any successor
agency.
"Secured Indebtedness" means any Indebtedness of either Note Issuer
secured by a Lien. "Secured Indebtedness" of any Guarantor Subsidiary has a
correlative meaning.
"Securities Act" means the Securities Act of 1933, as amended (or
any successor act) and the rules and regulations thereunder.
"Series A Indenture" means the Indenture, dated as of July 16, 1997,
among the Issuers and State Street Bank and Trust Company, as amended or
supplemented from time to time, relating to the Series A Notes.
"Series A Notes" means the Initial Series A Notes and any notes
issued in exchange therefor pursuant to the Exchange and Registration Rights
Agreement.
"Share Issuance Agreement" means the Share Issuance Agreement
between Iridium and IWCL, dated as of June 9, 1997, as amended from time to
time.
"Significant Subsidiary" means a Restricted Subsidiary that is a
"significant subsidiary" as defined in Rule 1-02(w) of Regulation S-X under
the Securities Act and the Exchange Act as in effect on the Issue Date.
"Space System Contract" means the Iridium Space System Contract
between Iridium and Motorola, dated as of July 29, 1993, as amended from time
to time.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
"Subordinated Obligation" means any Indebtedness of either Note
Issuer (whether outstanding on the Issue Date or thereafter Incurred) which is
subordinate or junior in right of
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payment to the Series B Notes pursuant to a written agreement to that effect.
Iridium's 14 1/2% Senior Subordinated Notes due 2006 shall be Subordinated
Obligations.
"Subsidiary" of any Person means (i) a corporation more than 50% of
the combined voting power of the outstanding Voting Stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries of such Person or
(ii) any other Person (other than a corporation) in which such Person, or one
or more other Subsidiaries of such Person or such Person and one or more other
Subsidiaries of such Person, directly or indirectly, has at least a majority
ownership and power to direct the policies, management and affairs thereof.
"Subsidiary Guaranty" means any Guarantee of the Series B Notes
which may from time to time be executed and delivered pursuant to the terms of
this Indenture. Each such Subsidiary Guaranty shall be in the form prescribed
in this Indenture.
"Tax Amount" means the aggregate amount of distributions required to
be made by Iridium to its members under Section 3.07(c) of the LLC Agreement
(or a successor provision relating to distributions by Iridium with respect to
members' U.S. tax liability). Notwithstanding anything to the contrary, Tax
Amount shall not include taxes resulting from Iridium's reorganization as or
change in the status to a corporation.
"Terrestrial Network Development Contract" means the Terrestrial
Network Development Contract between Iridium and Motorola, entered into June,
1995, as amended from time to time.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date of this Indenture.
"Total Invested Capital" means, as of any date of determination, the
sum of (a) Total Pro Forma Consolidated Indebtedness as of such date and
(b) $1,982,000,000 plus the aggregate proceeds received by Iridium or any
Restricted Subsidiary in respect of the issuance of Capital Stock of Iridium,
including the fair value of property other than cash (as determined in good
faith by the Board of Directors in a resolution filed with the Trustee), less
any redemptions of, or dividends or other distributions on, Capital Stock of
Iridium (other than any Tax Amount or any dividend or distribution in Capital
Stock) made after the Issue Date and on or prior to the date of determination.
"Total Pro Forma Consolidated Indebtedness" means, as of any date of
determination, after giving effect to any Indebtedness to be Incurred by
Iridium and its Restricted Subsidiaries on a consolidated basis on such date
and the application of the proceeds therefrom, the aggregate amount of
Outstanding Indebtedness as of such date determined on a consolidated
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basis in accordance with GAAP and which would appear on the consolidated
balance sheet of Iridium.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"Trust Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform Commercial Code
as in effect from time to time.
"Unrestricted Subsidiary" means (i) any Subsidiary of Iridium
designated as such by the Board of Directors as set forth below where
(a) neither Iridium nor any of its other Subsidiaries (other than another
Unrestricted Subsidiary) (1) provides credit support for, or Guarantee of, any
Indebtedness of such Subsidiary or any Subsidiary of such Subsidiary
(including any undertaking, agreement or instrument evidencing such
Indebtedness), (2) is directly or indirectly liable for any Indebtedness of
such Subsidiary or any Subsidiary of such Subsidiary, or (3) has any
obligation to make additional Investments (other than Permitted Investments)
in such Subsidiary or any Subsidiary of such Subsidiary (other than, with
respect to clauses (1) and (2) above, in the case of any Indebtedness of
Iridium or any Restricted Subsidiary, the proceeds of which were received by
Iridium or a Restricted Subsidiary, that is permitted under Section 4.03 as to
which the Unrestricted Subsidiary provides a Guarantee) and (b) such
Subsidiary and each Subsidiary of such Subsidiary has at least one director on
its board of directors that is not a director or executive officer of Iridium
or any Restricted Subsidiary, and (ii) any Subsidiary of an Unrestricted
Subsidiary. The Board of Directors may designate any Subsidiary to be an
Unrestricted Subsidiary by filing a resolution to such effect with the
Trustees unless such Subsidiary or any Subsidiary of such Subsidiary owns any
Capital Stock or Indebtedness of, or owns or holds any Lien (other than a
Permitted Lien) on any property of, Iridium or any other Subsidiary of Iridium
which is not a Subsidiary of the Subsidiary to be so designated or otherwise
an Unrestricted Subsidiary; provided, however, that either (A) the Subsidiary
to be so designated has total assets of $1,000 or less or (B) immediately
after giving effect to such designation, Iridium could incur an additional
$1.00 of Indebtedness pursuant to the first sentence of paragraph (a) under
Section 4.03; and provided further, however, that Iridium could make a
Restricted Payment in an amount equal to the greater of the fair market value
and the book value of such Subsidiary pursuant to Section 4.04 and such amount
is thereafter treated as a Restricted Payment for the purpose of calculating
the aggregate amount available for Restricted Payments thereunder. The Board
of Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary by filing a resolution to such effect with the applicable Trustee,
provided that, immediately after giving effect to such designation, Iridium
could incur an additional $1.00 of Indebtedness pursuant to the first sentence
of paragraph (a) under Section 4.03 and such Subsidiary (as well as each of
Iridium and the other Xxxxxxxxx
00
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Subsidiaries) complies with Section 4.15 as if such Subsidiary were a newly
created Subsidiary. Notwithstanding the foregoing, neither Capital nor any of
its Subsidiaries may be Unrestricted Subsidiaries.
"Vendor Financing Facility" means any agreements between Iridium
and/or any Subsidiary of Iridium and one or more vendors or lessors of
equipment to Iridium and/or any Subsidiary (or any affiliate of any such
vendor or lessor) providing financing for the acquisition by Iridium or any
such Subsidiary of equipment or services from any such vendor or lessor.
"Voting Stock" of any Person means Capital Stock of such Person
which ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or only so
long as no senior class of securities has such voting power by reason of any
contingency.
"Wholly-Owned Restricted Subsidiary" means, with respect to Iridium,
a Restricted Subsidiary of Iridium all of the outstanding Capital Stock or
other ownership interests of which (other than Capital Stock constituting
directors' qualifying shares or interests held by directors or shares or
interests required to be held by foreign nationals, in each case to the extent
mandated by applicable law) are owned by Iridium or by one or more
Wholly-Owned Restricted Subsidiaries of Iridium, or by Iridium and one or more
Wholly-Owned Restricted Subsidiaries of Iridium.
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SECTION 1.02. Other Definitions.
Defined in
Term Section
---- ----------
"Affiliate Transaction" . . . . . . . . . . . . . . . . . . . . 4.07
"Agent Members . . . . . . . . . . . . . . . . . . . . . . . . . 2.13
"Asset Drop-Down Transaction" . . . . . . . . . . . . . . . . . 5.01(b)
"Bankruptcy Law" . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Class A Common Stock" . . . . . . . . . . . . . . . . . . . . . Recitals
"covenant defeasance option" . . . . . . . . . . . . . . . . . . 8.01(b)
"Custodian" . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Exchange Series B Notes" . . . . . . . . . . . . . . . . . Introduction
"Global Series B Notes" . . . . . . . . . . . . . . . . . . . . 2.01(c)
"Initial Series A Notes" . . . . . . . . . . . . . . . . . . . . Recitals
"Initial Series B Notes" . . . . . . . . . . . . . . . . . . Introduction
"Insurance Proceeds" . . . . . . . . . . . . . . . . . . . . . . 4.16
"legal defeasance option" . . . . . . . . . . . . . . . . . . . 8.01(b)
"Legal Holiday" . . . . . . . . . . . . . . . . . . . . . . . . 11.08
"Obligations" . . . . . . . . . . . . . . . . . . . . . . . . . 10.01
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
"Private Exchange Series B Notes . . . . . . . . . . . . . . Introduction
"Purchase Agreement . . . . . . . . . . . . . . . . . . . . . . Recitals
"QIBs" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(b)
"Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
"Regulation S Permanent Global Series B Notes" . . . . . . . . . 2.01(c)
"Regulation S Restricted Period" . . . . . . . . . . . . . . . . 2.01
"Regulation S Series B Notes Exchange Date" . . . . . . . . . . 2.01(c)
"Regulation S Temporary Global Series B Notes" . . . . . . . . . 2.01(c)
"Restricted Payment" . . . . . . . . . . . . . . . . . . . . . . 4.04
"Rule 144A" . . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(b)
"Rule 144A Global Series B Note" . . . . . . . . . . . . . . . . 2.01(b)
"Series B Notes" . . . . . . . . . . . . . . . . . . . . . . Introduction
"Successor Companies" . . . . . . . . . . . . . . . . . . . . . 5.01
"Transfer Restricted Security" . . . . . . . . . . . . . . . . . 2.06
"Units" . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
"Warrant Agent" . . . . . . . . . . . . . . . . . . . . . . . . Recitals
"Warrant Agreement" . . . . . . . . . . . . . . . . . . . . . . Recitals
"Warrants" . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
"Warrant Shares" . . . . . . . . . . . . . . . . . . . . . . . . Recitals
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
This Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
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"Commission" means the SEC.
"indenture securities" means the Series B Notes.
"indenture Securityholder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Issuers and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the
plural include the singular unless the context otherwise requires;
(6) unsecured Indebtedness shall not be deemed to be subordinate or
junior to Secured Indebtedness of either Note Issuer or a Guarantor
Subsidiary, as the case may be, merely by virtue of its nature as
unsecured Indebtedness; and
(7) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof that
would be shown on a balance sheet of the issuer dated such date prepared
in accordance with GAAP and accretion of principal on such security shall
be deemed to be the Incurrence of Indebtedness.
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ARTICLE II
The Series B Notes
SECTION 2.01. Form and Dating. (a) The Initial Series B Notes and
the Trustee's certificate of authentication thereon shall be substantially in
the form of Exhibit A, which is hereby incorporated in and expressly made a
part of this Indenture, and as otherwise provided in this Article II. Any
Exchange Series B Notes and Private Exchange Series B Notes and the Trustee's
certificate of authentication thereon shall be substantially in the form of
Exhibit B, which is incorporated in and expressly made a part of this
Indenture, and as otherwise provided in this Article II. The Series B Notes
may have notations, legends or endorsements required by law, stock exchange
rule, agreements to which any Issuer is subject, if any, or usage (provided
that any such notation, legend or endorsement is in a form acceptable to the
Note Issuers). Each Series B Note shall be dated the date of its
authentication. The terms of the Series B Notes set forth in Exhibit A and B
hereto are part of the terms of this Indenture. The Series B Notes shall be
issuable only in registered form without coupons and only in denominations of
$1,000 and any integral multiple of thereof. The Initial Series B Notes are
being offered and sold by the Note Issuers pursuant to the Purchase Agreement.
(b) Initial Series B Notes offered and sold to "qualified
institutional buyers" (as defined in Rule 144A under the Securities Act)
("QIBs") in accordance with Rule 144A under the Securities Act (such rule or
any successor provision thereto, "Rule 144A") as provided in the Purchase
Agreement, shall be issued on the Issue Date initially in the form of one or
more permanent global Series B Notes in registered form, substantially in the
form set forth in Exhibit A hereto (the "Rule 144A Global Series B Notes"),
deposited with the Trustee, as custodian for the Depositary, duly executed by
the Issuers and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of any Rule 144A Global Series B Note may from time
to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
(c) Initial Series B Notes offered and sold in offshore
transactions in reliance on Regulation S as provided in the Purchase
Agreement, shall be issued initially on the Issue Date in the form of one or
more temporary global Series B Notes in registered form, substantially in the
forms set forth in Exhibit A hereto (the "Regulation S Temporary Global Series
B Notes"). The Regulation S Temporary Global Series B Notes shall be
registered in the name of, and held by, a temporary certificate holder
designated by Chase Securities Inc. until the 40th day after the later of the
commencement of the distribution of the Initial Series B Notes and the Issue
Date (the "Regulation S Restricted Period") with respect to the offer and sale
of the Initial Series B Notes (the "Regulation S Series B Notes Exchange
Date"). Iridium shall promptly notify the Trustee in writing of the
occurrence of the Regulation S Series B Notes Exchange Date and, within a
reasonable time after the Regulation S Series B Notes Exchange Date, upon
receipt by the Trustee and Iridium of one or more certificates substantially
in the form set forth in Exhibit C
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hereto from one or more Holders of interests in the applicable Regulation S
Temporary Global Series B Notes, the Issuers shall execute, and the Trustee
shall authenticate and deliver, one or more permanent global Series B Notes in
registered form, substantially in the form set forth in Exhibit A hereto (the
"Regulation S Permanent Global Series B Notes", and together with the related
Regulation S Temporary Global Series B Notes, the "Regulation S Global Series
B Notes") in exchange for the Regulation S Temporary Global Series B Notes of
like tenor and amount. The Regulation S Global Series B Note and Rule 144A
Global Series B Note are referred to herein as the "Global Series B Notes."
SECTION 2.02. Execution and Authentication. An Officer shall sign
the Series B Notes for each of the Note Issuers by manual or facsimile
signature. Any reference herein to the execution of a Series B Note by a
Subsidiary Guarantor shall be interpreted as a reference to the endorsement by
such Subsidiary Guarantor of its Subsidiary Guaranty with respect thereto.
If an Officer whose signature is on a Series B Note no longer holds
that office at the time the Trustee authenticates such Series B Note, such
Series B Note shall be valid nevertheless.
A Series B Note shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Series B
Note. The signature shall be conclusive evidence that the Series B Note has
been authenticated under this Indenture.
The Trustee shall authenticate and deliver (1) Initial Series B
Notes for original issue in an aggregate principal amount of up to
$500,000,000 and (2) Exchange Series B Notes for issue only in a Registered
Exchange Offer and Private Exchange Series B Notes only in a Private Exchange,
each pursuant to the Exchange and Registration Rights Agreement, for a like
principal amount of Initial Series B Notes exchanged pursuant thereto, in each
case upon a written order of the Note Issuers signed by an Officer of each
Note Issuer. Such order shall specify the amount of the Series B Notes to be
authenticated, the date on which the original issue of Series B Notes is to be
authenticated and whether the Series B Notes are to be Initial Series B Notes,
Exchange Series B Notes or Private Exchange Series B Notes. The aggregate
principal amount of Series B Notes outstanding at any time may not exceed
$500,000,000 except as provided in Section 2.07.
The Trustee may appoint an authenticating agent reasonably
acceptable to Iridium to authenticate the Series B Notes. Any such
appointment shall be evidenced by an instrument signed by an authorized
officer of the Trustee, a copy of which shall be furnished to Iridium. Unless
limited by the terms of such appointment, an authenticating agent may
authenticate Series B Notes whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication by
such agent. An authenticating agent has the same rights as any Registrar,
Paying Agent or agent for service of notices and demands.
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Upon execution and delivery of the Indenture, the Initial Series B
Notes shall be endorsed by each of the Initial Guarantors to evidence their
Guaranties of the obligations thereunder.
The Issuers, the Trustee and any agent of the Issuers or the Trustee
may treat the person in whose name any Series B Note is registered as the
owner of such Series B Note for the purpose of receiving payment of principal
of and (subject to the provisions of this Indenture and the Series B Notes
with respect to record dates) interest on such Series B Note and for all other
purposes whatsoever, whether or not such Series B Note is overdue, and neither
the Issuers, the Trustee nor any agent of the Issuers or the Trustee shall be
affected by notice to the contrary.
SECTION 2.03. Registrar and Paying Agent. The Note Issuers shall
maintain an office or agency in the Borough of Manhattan, City of New York
where Series B Notes may be presented for registration of transfer or for
exchange (the "Registrar") and an office or agency where Series B Notes may be
presented for payment (the "Paying Agent"). The Registrar shall keep a
register of the Series B Notes and of their transfer and exchange. The Note
Issuers may have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
The Note Issuers shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-registrar not a party to this
Indenture, which shall incorporate the applicable terms of the TIA. The
agreement shall implement the provisions of this Indenture that relate to such
agent. The Note Issuers shall notify the Trustee in writing of the name and
address of any such agent. If the Note Issuers fail to maintain a Registrar
or Paying Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation and indemnity therefor pursuant to Section 7.07. The
Note Issuers or any of their domestically incorporated Wholly-Owned Restricted
Subsidiaries may act as Paying Agent, Registrar, co-registrar or transfer
agent.
The Note Issuers initially appoint the Trustee as Registrar and
Paying Agent in connection with the Series B Notes. The office of the
Registrar and Paying Agent for purposes of this Section 2.03 shall be at 00
Xxxxxxxx, Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
The Note Issuers initially appoint The Depository Trust Company to
act as Depositary with respect to the Global Series B Notes.
Iridium may remove any Registrar or Paying Agent upon written notice
to such Registrar or Paying Agent and to the Trustee; provided that no such
removal shall become effective until (1) acceptance of an appointment by a
successor as evidenced by an appropriate agreement entered into by the Note
Issuers and such successor Registrar or Paying Agent, as the case may be, and
delivered to the Trustee or (2) notification to the Trustee that the Trustee
shall serve as Registrar or Paying Agent until the appointment of a successor
in accordance with clause (1) above. The Registrar or Paying Agent may resign
at any time upon written notice;
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provided, however, that the Trustee may resign as Paying Agent or Registrar
only if the Trustee also resigns as Trustee in accordance with Section 7.08.
SECTION 2.04. Paying Agent To Hold Money in Trust. Prior to each
due date of the principal and interest on any Series B Note, the Note Issuers
shall deposit with the Paying Agent (or if a Note Issuer or a domestically
organized Wholly-Owned Restricted Subsidiary is acting as Paying Agent,
segregate and hold in trust for the benefit of the Persons entitled thereto) a
sum sufficient to pay such principal and interest when so becoming due. The
Note Issuers shall require each Paying Agent (other than the Trustee) to agree
in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal of or interest on the Series B Notes and shall notify the Trustee of
any default by the Note Issuers in making any such payment, if a Note Issuer
or a domestically organized Wholly-Owned Restricted Subsidiary acts as Paying
Agent, it shall segregate the money held by it as Paying Agent and hold it as
a separate trust fund. The Note Issuers at any time may require a Paying
Agent to pay all money held by it to the Trustee and to account for any funds
disbursed by the Paying Agent. Upon complying with this Section, the Paying
Agent shall have no further liability for the money delivered to the Trustee.
Any money deposited with any Paying Agent, or then held by a Note
Issuer or a domestically organized Wholly-Owned Restricted Subsidiary in trust
for the payment of principal or interest on any Series B Note and remaining
unclaimed for two years after such principal and interest has become due and
payable shall, subject to the requirements of applicable escheat laws, be paid
to Iridium at its request, or, if then held by a Note Issuer or such a
Subsidiary, shall be discharged from such trust; and the Holders shall
thereafter, as unsecured general creditors, look only to the Note Issuers for
payment thereof, and all liability of the Paying Agent with respect to such
money shall thereupon cease.
SECTION 2.05. Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to
it of the names and addresses of Holders. If the Trustee is not the
Registrar, Iridium shall furnish, or cause the Registrar to furnish, to the
Trustee, in writing at least five Business Days before each interest payment
date and at such other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably require of the
names and addresses of Holders.
SECTION 2.06. Transfer and Exchange. The Series B Notes shall be
issued in registered form and shall be transferable only upon the surrender of
a Series B Note for registration of transfer. When a Series B Note is
presented to the Registrar or a co-registrar with a request to register a
transfer, the Registrar shall register the transfer as requested if the
requirements of Section 8-401(l) of the Uniform Commercial Code are met, as
stated to the Registrar in an opinion of counsel if requested by the
Registrar. When Series B Notes are presented to the Registrar or a
co-registrar with a request to exchange them for an equal principal amount of
Series B Notes of other denominations, the Registrar shall make the exchange
as
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requested if the same requirements are met. To permit registration of
transfers and exchanges, the Issuers shall execute and the Trustee shall
authenticate Series B Notes at the Registrar's or co-registrar's request. The
Note Issuers may require payment of a sum sufficient to pay all taxes,
assessments or other governmental charges in connection with any transfer or
exchange pursuant to this Section. The Note Issuers shall not be required to
make and the Registrar need not register transfers or exchanges of Series B
Notes selected for redemption (except, in the case of Series B Notes to be
redeemed in part, the portion thereof not to be redeemed) or any Series B
Notes for a period of 15 days before a selection of Series B Notes to be
redeemed or 15 days before an Interest Payment Date.
Prior to the due presentation for registration of transfer of any
Series B Note, the Issuers, the Trustee, the Paying Agent, the Registrar or
any co-registrar may deem and treat the Person in whose name a Series B Note
is registered as the absolute owner of such Series B Note for the purpose of
receiving payment of principal of and interest, if any, on such Series B Note
and for all other purposes whatsoever, whether or not such Series B Note is
overdue, and none of the Issuers, the Trustee, the Paying Agent, the Registrar
or any co-registrar shall be affected by notice to the contrary.
Any Holder of a Global Series B Note shall, by acceptance of such
Global Series B Note, agree that transfers of beneficial interest in such
Global Series B Note may be effected only through a book-entry system
maintained by the Holder of such Global Series B Note (or its agent), and that
ownership of a beneficial interest in such Global Series B Note shall be
required to be reflected in a book entry.
All Series B Notes issued upon any transfer or exchange pursuant to
this Section 2.06 shall evidence the same debt and shall be entitled to the
same benefits under this Indenture as the Series B Notes surrendered upon such
transfer or exchange.
During the period beginning on the later of the Issue Date and the
last date on which any of the Issuers or any Affiliate of the Issuers was the
owner of an Initial Series B Note (or any predecessor Series B Note) and
ending on the date two years (or such shorter period of time as permitted by
Rule 144(k) under the Securities Act or any successor provision thereunder)
from any such date, any Initial Series B Note issued or owned during the
period set forth above, as the case may be, and any Series B Note issued upon
registration of transfer of, or in exchange for, or in lieu of, such Initial
Series B Note, shall be deemed a "Transfer Restricted Security" and shall be
subject to the restrictions on transfer provided in the Private Placement
Legend; provided, however, that the term "Transfer Restricted Security" shall
not include (a) any Initial Series B Note which is issued upon transfer of, or
in exchange for, any Series B Note which is not a Transfer Restricted Security
or (b) any Initial Series B Note as to which such restrictions on transfer
have been terminated in accordance with this Section 2.06. Any Transfer
Restricted Security shall bear the Private Placement Legend.
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Every Transfer Restricted Security shall be subject to the
restrictions on transfer set forth in Section 2.01 and Section 2.14 and shall
bear the Private Placement Legend and the Holder of each Transfer Restricted
Security or Holder of a beneficial interest therein, by such Holder's or
holder's acceptance thereof, agrees to be bound by such restrictions on
transfer.
The restrictions imposed by Section 2.01 and Section 2.14 upon the
transferability of any particular Transfer Restricted Security shall cease and
terminate and the Private Placement Legend shall no longer be necessary (a) in
the case of a Regulation S Global Series B Note, on the Regulation S Series B
Note Exchange Date or (b) in the case of a Rule 144A Global Series B Note or
Definitive Series B Note, on (x) the later of two years (or such shorter
period of time as permitted by Rule 144(k) under the Securities Act or any
successor provision thereunder) after the later of the Issue Date or the last
date on which any Issuer or any Affiliate of any Issuer was the owner of such
Transfer Restricted Security (or any predecessor of such Transfer Restricted
Security) or (y) (if earlier) if and when such Transfer Restricted Security
has been sold pursuant to an effective registration statement under the
Securities Act or, unless the Holder thereof is an Affiliate of any Issuer,
transferred pursuant to Rule 144 or Rule 904 under the Securities Act (or any
successor provision). Iridium shall inform the Registrar in writing of the
effective date of any registration statement registering any Transfer
Restricted Securities under the Securities Act.
SECTION 2.07. Replacement Series B Notes. If a mutilated Series B
Note is surrendered to the Registrar or if the Holder of a Series B Note
claims that the Series B Note has been lost, destroyed or wrongfully taken,
the Note Issuers shall issue, the Guarantor Subsidiaries shall execute and the
Trustee shall authenticate a replacement Series B Note if the requirements of
Section 8-405 of the Uniform Commercial Code are met, such that the Holder (i)
satisfies Iridium or the Trustee within a reasonable time after he has notice
of such loss, destruction or wrongful taking and the Registrar does not
register a transfer prior to receiving such notification that such
requirements are met, (ii) makes such request to Iridium or the Trustee prior
to the Series B Note being acquired by a bona fide purchaser and
(iii) satisfies any other reasonable requirements of the Trustee including, if
requested, an opinion of counsel for the Holder to the effect that the Holder
has complied with the requirements of this Section 2.07. If required by the
Trustee or Iridium, such Holder shall furnish an indemnity bond sufficient in
the judgment of the Trustee or Iridium, as the case may be, to protect the
Issuers, the Trustee, the Paying Agent, the Registrar and any co-registrar
from any loss that any of them may suffer if a Series B Note is replaced.
Iridium and the Trustee may charge the Holder for their expenses in replacing
a Series B Note. In the event any such mutilated, lost, destroyed or
wrongfully taken Series B Note has become or is about to become due and
payable, the Issuers in its discretion may pay such Series B Note instead of
issuing a new Series B Note in replacement thereof.
Every replacement Series B Note is an additional obligation of the
Issuers.
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The provisions of this Section 2.07 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, lost, destroyed or wrongfully taken
Series B Notes.
SECTION 2.08. Outstanding Series B Notes. Series B Notes
outstanding at any time are all Senior Notes authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation and
those described in this Section as not outstanding. A Series B Note does not
cease to be outstanding because an Issuer or an Affiliate of an Issuer holds
the Series B Note.
If a Series B Note is replaced pursuant to Section 2.07, it ceases
to be outstanding unless the Trustee and Iridium receive proof satisfactory to
them that the replaced Series B Note is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance
with this Indenture, on a redemption date or maturity date money sufficient to
pay all principal and interest payable on that date with respect to the Series
B Notes (or portions thereof) to be redeemed or maturing, as the case may be,
and the Paying Agent is not prohibited from paying such money to the Holders
on that date pursuant to the terms of this Indenture, then on and after that
date such Series B Notes (or portions thereof) cease to be outstanding and
interest on them ceases to accrue.
In determining whether the Holders of the required principal amount
of Series B Notes have concurred in any direction, waiver or consent, Series B
Notes owned by the Issuers or any of its Affiliates shall be disregarded,
except that, for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Series B
Notes which the Trustee knows or has reason to know are so owned shall be
disregarded.
SECTION 2.09. Temporary Series B Notes. Until Definitive Series B
Notes and Global Series B Notes are ready for delivery, the Issuers may
prepare and the Trustee shall authenticate temporary Series B Notes.
Temporary Series B Notes shall be substantially in the form of Definitive
Series B Notes but may have variations that Iridium considers appropriate for
temporary Series B Notes. Without unreasonable delay, the Issuers shall
prepare and the Trustee shall authenticate Definitive Series B Notes and
deliver them in exchange for temporary Series B Notes upon surrender of such
temporary Series B Notes at the office or agency of the Note Issuers, without
charge to the Holder.
SECTION 2.10. Cancellation. A Note Issuer at any time may deliver
Series B Notes to the Trustee for cancellation. The Registrar and the Paying
Agent shall forward to the Trustee any Series B Notes surrendered to them for
registration of transfer, exchange or payment. The Trustee and no one else
shall cancel and destroy (subject to the record retention requirements of the
Exchange Act) all Series B Notes surrendered for registration of transfer,
exchange,
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payment or cancellation unless Iridium directs the Trustee to deliver canceled
Series B Notes to Iridium. The Issuers may not issue new Series B Notes to
replace Series B Notes they have redeemed, paid or delivered to the Trustee
for cancellation. The Trustee shall not authenticate Series B Notes in place
of canceled Series B Notes other than pursuant to the terms of this Indenture.
SECTION 2.11. Defaulted Interest. If the Issuers default in a
payment of interest on the Series B Notes, the Issuer shall pay the defaulted
interest (plus interest on such defaulted interest to the extent lawful) in
any lawful manner. The Issuers may pay the defaulted interest to the persons
who are Holders on a subsequent special record date. The Note Issuers shall
fix or cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail or cause to be
mailed to each Holder a notice that states the special record date, the
payment date and the amount of defaulted interest to be paid.
The Issuers may make payment of any defaulted interest in any other
lawful manner not inconsistent with the requirements (if applicable) of any
securities exchange on which the Series B Notes may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the Note
Issuers to the Trustee of the proposed payment pursuant to this paragraph,
such manner of payment shall be deemed practicable by the Trustee.
SECTION 2.12. CUSIP Numbers. The Note Issuers in issuing the
Series B Notes may use "CUSIP" numbers (if then generally in use) and, if so,
the Trustee shall use "CUSIP" numbers in notices of redemption as a
convenience to Holders, provided, however, that any such notice may state that
no representation is made as to the correctness of such numbers either as
printed on the Series B Notes or as contained in any notice of a redemption
and that reliance may be placed only on the other identification numbers
printed on the Series B Notes, and any such redemption shall not be affected
by any defect in or omission of such numbers.
SECTION 2.13. Book-Entry Provisions for Global Series B Notes.
(a) Each Global Series B Note initially shall (i) be registered in
the name of the Depositary for such Global Series B Note or the nominee of
such Depositary and (ii) be delivered to the Trustee as custodian for such
Depositary and (iii) bear the Global Securities legend as set forth in
Exhibits A and B hereto.
Members of, or participants in, the Depositary ("Agent Members")
shall have no rights under this Indenture with respect to any Global Series B
Note held on their behalf by the Depositary, or the Trustee as its custodian,
or under such Global Series B Note, and the Depositary may be treated by the
Issuers, the Trustee and any agent of the Issuers or the Trustee as the
absolute owner of such Global Series B Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Issuers, the
Trustee or any agent of the Issuers or the Trustee from giving effect to any
written certification, proxy or other
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authorization furnished by the Depositary or shall impair, as between the
Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a Holder of any Series B Note.
(b) Transfers of a Global Series B Note shall be limited to
transfers of such Global Series B Note in whole, but not in part, to the
Depositary, its successors or their respective nominees. Interests of
beneficial owners in a Global Series B Note may be transferred in accordance
with the rules and procedures of the Depositary and the provisions of Section
2.14. Except as otherwise provided in Section 2.14, beneficial owners of
interests in a Global Series B Note may obtain Definitive Series B Notes in
exchange for their beneficial interests in a Global Series B Note only if (i)
the Note Issuers notify the Trustee in writing that the Depositary is no
longer willing or able to act as Depositary for such Global Series B Note or
the Depositary ceases to be a "clearing agency" registered under the Exchange
Act, at a time when the Depositary is required to be so registered in order to
act as Depositary, and, in each case, a successor depositary is not appointed
by the Note Issuers within 90 days of such notice, (ii) the Note Issuers, at
their option, notify the Trustee in writing that they elect to cause the
issuance of Definitive Series B Notes or (iii) an Event of Default has
occurred and is continuing and the Registrar has received a request from the
Depositary to effect such exchange.
(c) In connection with any transfer of a portion of the beneficial
interest in a Global Series B Note pursuant to Section 2.13(b) or Section
2.14, the Registrar shall reflect on its books and records the date and a
decrease in the principal amount of such Global Series B Note in an amount
equal to the principal amount of the beneficial interest in the Global Series
B Note to be transferred, and the Issuers shall execute, and the Trustee shall
authenticate and deliver, one or more Definitive Series B Notes of like tenor
and amount.
(d) Any beneficial interest in one of the Global Series B Notes
that is transferred to a person who takes delivery in the form of an interest
in the other corresponding Global Series B Note will, upon transfer, cease to
be an interest in such Series B Note and become an interest in the other
corresponding Series B Note and, accordingly, will thereafter be subject to
all transfer restrictions, if any, and other procedures applicable to
beneficial interest in such other corresponding Series B Note for as long as
it remains such an interest.
(e) In connection with the transfer of an entire Global Series B
Note to beneficial owners pursuant to subsection (b) of this Section, such
Global Series B Note shall be deemed to be surrendered to the Trustee for
cancellation, and the Issuers shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the
Depositary in exchange for its beneficial interest in such Global Series B
Note, an equal aggregate principal amount of Definitive Series B Notes of
authorized denominations.
(f) Any Definitive Series B Note delivered in exchange for an
interest in a Global Series B Note pursuant to subsection (b) or subsection
(e) of this Section shall, unless the
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circumstances provided in Section 2.14(a)(i)(x) exist or except as otherwise
provided in Section 2.14(e), bear the applicable legend regarding transfer
restrictions applicable to the Definitive Series B Note set forth in Exhibit
A.
(g) The registered holder of a Global Series B Note may grant
proxies and otherwise authorize any person, including Agent Members and
persons that may hold interests through Agent Members, to take any action
which a Holder is entitled to take under this Indenture or the Series B Notes.
SECTION 2.14. Special Transfer Provisions.
Unless and until an Initial Series B Note or an interest therein is
transferred or exchanged under an effective registration statement under the
Securities Act, the following provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of an interest in a Transfer Restricted Security to any IAI
which is not a QIB (excluding Non-U.S. Persons) that is consistent with the
Private Placement Legend:
(i) The Registrar shall register the transfer of any Series B
Note, whether or not such Series B Note bears the Private Placement
Legend, if (x) the requested transfer is at least two years after the
later of the Issue Date and the last date on which any of Issuers or an
Affiliate of the Issuers was the owner of such Series B Note or (y) the
proposed transferee has delivered to the Registrar a certificate
substantially in the form set forth in Exhibit D hereto.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in a Rule 144A Global Series B Note seeking to
transfer a Definitive Series B Note to another Person, upon receipt by
the Registrar of (x) the documents, if any, required by paragraph (i) and
(y) instructions given in accordance with the Depositary's and the
Registrar's procedures therefor, the Registrar shall reflect on its books
and records the date and a decrease in the principal amount of such Rule
144A Global Series B Note in an amount equal to the principal amount of
the beneficial interest in such Rule 144A Global Series B Note to be
transferred, and the Issuers shall execute, and the Trustee shall
authenticate and deliver, one or more Definitive Series B Notes of like
tenor and amount.
(iii) An IAI which is not a QIB and not a Non-U.S. Person
shall only hold Definitive Series B Notes.
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(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of an Initial Series B
Note to a QIB (other than a Non-U.S. Person):
(i) If the Series B Note to be transferred consists of (x)
Definitive Series B Notes, the Registrar shall register the transfer if
such transfer is being made by a proposed transferor who has delivered to
the Trustee a certificate substantially in the form set forth in Exhibit
E hereto or (y) an interest in the Rule 144A Global Series B Note, the
transfer of such interest may be effected only through the book entry
system maintained by the Depository.
(ii) If the Series B Note to be transferred consists of
Definitive Series B Notes, upon receipt by the Trustee of instructions
given in accordance with the Depositary's and the Registrar's procedures
therefor, the Registrar shall reflect on its books and records the date
and an increase in the principal amount of the Rule 144A Global Series B
Note in an amount equal to the principal amount of the Definitive Note,
to be transferred, and the Trustee shall cancel the Definitive Series B
Note so transferred.
(c) Transfers of Interests in the Regulation S Global Series B Note
to U.S. Persons. The following provisions shall apply with respect to any
transfer of an interest in the Regulation S Global Series B Note to U.S.
Persons:
(i) If the beneficial interest to be transferred is in a
Regulation S Temporary Global Series B Note, transfers by an owner of a
beneficial interest in such Regulation S Global Series B Note to a
transferee who takes delivery of such interest through the corresponding
Rule 144A Global Series B Note will be made only upon the receipt by the
Trustee from the transferor of a certificate substantially in the form of
Exhibit E hereto to the effect that such transfer is being made to a
Person whom the transferor reasonably believes is a QIB within the
meaning of Rule 144A in a transaction meeting the requirements of Rule
144A.
(ii) If the beneficial interest to be transferred is in a
Regulation S Permanent Global Series B Note, the Registrar shall register
the transfer of any such Series B Note without requiring any additional
certification.
(d) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any transfer of an interest in a Series
B Note to a Non-U.S. Person:
(i) The Registrar shall register any proposed transfer to any
Non-U.S. Person if the Series B Note to be transferred is a Definitive
Series B Note or an interest in a Rule 144A Global Series B Note only
upon receipt of a certificate substantially in the form set forth in
Exhibit F hereto from the proposed transferor. Prior
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to the termination of the Regulation S Restricted Period, any Non-U.S.
person shall be delivered a beneficial interest in the corresponding
Regulation S Temporary Global Series B Note.
(ii) (x) If the proposed transferor is an Agent Member holding
a beneficial interest in the Rule 144A Global Series B Note, upon receipt
by the Registrar of (1) the documents required by paragraph (i) of this
paragraph (d) and (2) instructions in accordance with the Depositary's
and the Registrar's procedures, the Registrar shall reflect on its books
and records the date and a decrease in the principal amount of such Rule
144A Global Series B Note in an amount equal to the principal amount of
the beneficial interest in such Rule 144A Global Series B Note to be
transferred and (y) upon receipt by the Registrar of instructions given
in accordance with the Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and an increase
in the principal amount of the corresponding Regulation S Global Series B
Note in an amount equal to the principal amount of the Definitive Series
B Note or such Rule 144A Global Series B Note, as the case may be, to be
transferred, and the Registrar shall cancel the Definitive Series B Note
so transferred or decrease the principal amount of such Rule 144A Global
Series B Note, as the case may be.
(e) Private Placement Legend. Upon the transfer, exchange or
replacement of Series B Notes not bearing the Private Placement Legend, the
Registrar shall deliver Series B Notes that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Series B Notes bearing
the Private Placement Legend, the Registrar shall deliver only Series B Notes
that bear the Private Placement Legend unless either (i) the Private Placement
Legend is no longer required pursuant to Section 2.01 and Section 2.06 or (ii)
there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Issuers and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act.
(f) General. By its acceptance of any Series B Note, or any
beneficial interest in any Global Series B Note, bearing the Private Placement
Legend, each Holder of such Series B Note or holder of such beneficial
interest acknowledges the restrictions on transfer of such Series B Note set
forth in this Indenture and in the Private Placement Legend and agrees that it
will transfer such Series B Note only as provided in this Indenture. The
Registrar shall not register a transfer of any Series B Note unless such
transfer complies with the restrictions on transfer of such Series B Note set
forth in this Indenture. In connection with any transfer of Series B Notes to
an IAI, each such Holder or beneficial owner agrees by its acceptance of the
Series B Notes to furnish the Registrar or the Note Issuers such
certifications, legal opinions or other information as such Person may
reasonably require to confirm that such transfer is being made pursuant to an
exemption from, or a transaction not subject to, the registration requirements
of the Securities Act; provided, that the Registrar shall not be required to
determine (but may rely on a
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determination made by the Note Issuers with respect to) the sufficiency of any
such certifications, legal opinions or other information.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.13 or this Section 2.14.
The Issuers shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon
the giving of reasonable written notice to the Registrar.
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee. If either Note Issuer elects to
redeem Series B Notes pursuant to Section 3.07, it shall notify the Trustee in
writing of the redemption date and the principal amount of Series B Notes to
be redeemed.
The Note Issuer shall give each notice to the Trustee provided for
in this Section at least 30 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an
Officers' Certificate from the Note Issuer to the effect that such redemption
shall comply with the conditions herein. If fewer than all the Series B Notes
are to be redeemed, the record date relating to such redemption shall be
selected by Iridium and given to the Trustee, which record date shall be not
less than 15 days after the date of notice to the Trustee (unless a shorter
period shall be acceptable to the Trustee). Any such notice may be canceled
by notice in writing to the Trustee at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.
SECTION 3.02. Selection of Securities to be Redeemed. If fewer
than all the Series B Notes are to be redeemed, the Trustee shall select the
Series B Notes to be redeemed pro rata or by lot or by such other method as
the Trustee in its sole discretion deems to be fair and appropriate. The
Trustee shall make the selection from outstanding Series B Notes not
previously called for redemption. The Trustee may select for redemption
portions of the principal of Series B Notes that have denominations larger
than $1,000. Securities and portions of them the Trustee selects shall be in
amounts of $1,000 or a whole multiple of $1,000. Provisions of this Indenture
that apply to Series B Notes called for redemption also apply to portions of
Series B Notes called for redemption. The Trustee shall notify the Note
Issuers promptly of the Series B Notes or portions of Series B Notes to be
redeemed.
SECTION 3.03. Notice of Redemption. Any notice of redemption shall
identify the Series B Notes to be redeemed and shall state:
(1) the redemption date;
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(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Series B Notes called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Series B Notes are to be
redeemed, the certificate numbers and principal amounts of the particular
Series B Notes to be redeemed;
(6) that, unless the Note Issuers default in making such redemption
payment or the Paying Agent is prohibited from making such payment
pursuant to the terms of this Indenture, interest on Series B Notes (or
portion thereof) called for redemption ceases to accrue on and after the
redemption date;
(7) the CUSIP number, if any, printed on the Series B Notes being
redeemed;
(8) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on
the Series B Notes; and
(9) that if a Series B Note is to be redeemed in part, only the
portion of the principal amount (equal to $1,000 or an integral multiple
thereof) of such Series B Note to be redeemed and that a new Series B
Note in the aggregate principal amount equal to the unredeemed portion
thereof shall be issued without charge to the holder.
At either Note Issuer's request (which may be revoked at any time in
writing prior to the time at which the Trustee shall have given such notice to
the Holders), the Trustee shall give the notice of redemption in the
applicable Note Issuer's name and at the Note Issuer's expense. In such
event, the Note Issuer shall provide the Trustee with the information required
by this Section.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Series B Notes called for redemption become due and
payable on the redemption date and at the redemption price stated in the
notice. Upon surrender to the Paying Agent, such Series B Notes shall be paid
at the redemption price stated in the notice, plus accrued interest, if any,
to the redemption date; provided that if the redemption date is after a
regular record date and on or prior to the interest payment date, the accrued
interest shall be payable to the Holder of the redeemed Series B Notes
registered on the relevant record date. If mailed in the manner provided
herein, the notice shall be conclusively presumed to have been given whether
or not the Holder receives such notice. Failure to give notice or any defect
in the notice to any Holder shall not affect the validity of the notice to any
other Holder.
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SECTION 3.05. Deposit of Redemption Price. At least one Business
Day prior to the redemption date, the applicable Note Issuer shall deposit
with the Paying Agent (or, if a Note Issuer or a Subsidiary is the Paying
Agent, shall segregate and hold in trust) money sufficient to pay the
redemption price of and accrued interest on all Series B Notes to be redeemed
on that date other than Series B Notes or portions of Series B Notes called
for redemption which have been delivered by such Note Issuer to the Trustee
for cancellation.
SECTION 3.06. Series B Notes Redeemed in Part. Upon surrender of a
Series B Note that is redeemed in part, the Issuers shall execute and the
Trustee shall authenticate for the Holder (at the Note Issuers' expense) a new
Series B Note equal in principal amount to the unredeemed portion of the
Series B Note surrendered.
SECTION 3.07. Optional Redemption. (a) Except as set forth in
Section 3.07(b), the Series B Notes may not be redeemed prior to July 15,
2002. On and after that date, either Note Issuer may redeem the Series B
Notes in whole or in part at the following redemption prices (expressed in
percentages of principal amount), plus accrued and unpaid interest and
Liquidated Damages, if any, to the redemption date (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date that is on or prior to the date of redemption),
if redeemed during the 12-month period commencing on July 15 of the years set
forth below:
Redemption
Period Price
------ ----------
July 15, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107.500%
July 15, 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103.375%
July 15, 2004 and thereafter . . . . . . . . . . . . . . . . . . . . . . . . . . . 100.000%
(b) In addition, at any time on or prior to July 15, 2000, either
Note Issuer may redeem in the aggregate up to 33-1/3% of the original
aggregate principal amount of Series B Notes with the proceeds of one or more
Equity Offerings at a redemption price (expressed as a percentage of principal
amount thereof) of 115% plus accrued and unpaid interest and Liquidated
Damages, if any, to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date that is on or prior to the date of redemption);
provided, however, that at least 66-2/3% of the original aggregate principal
amount of the Series B Notes being redeemed must remain outstanding after each
such redemption.
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ARTICLE IV
Covenants
SECTION 4.01. Payment of Series B Notes. The Note Issuers, as
joint and several obligors, shall promptly pay the principal of and interest
and Liquidated Damages, if any, on the Series B Notes on the dates and in the
manner provided in the Series B Notes and in this Indenture. Principal,
interest and Liquidated Damages, if any, shall be considered paid on the date
due if on such date the Trustee or the Paying Agent holds in accordance with
this Indenture money sufficient to timely pay all principal, interest and
Liquidated Damages, if any, then due and the Trustee or the Paying Agent, as
the case may be, and is not prohibited from paying such money to the Holders
on that date pursuant to the terms of this Indenture.
The Note Issuers, as joint and several obligors, shall pay interest
on overdue principal at the rate specified therefor in the Series B Notes, and
shall pay interest on overdue installments of interest and Liquidated Damages,
if any, at the same rate to the extent lawful.
SECTION 4.02. SEC Reports. Notwithstanding that Iridium may not be
required to be or remain subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act, Iridium shall file with the SEC, and provide the
Trustees and Holders and prospective Holders (upon request) with the annual
reports and the information, documents and other reports which are specified
in Sections 13 and 15(d) of the Exchange Act.
In addition, for so long as any Series B Notes remain outstanding,
unless the Note Issuers are subject to Section 13 or 15(d) of the Exchange
Act, Iridium shall furnish to the Holders and to prospective investors in the
Series B Notes, upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.
The foregoing shall not require Capital or any Guarantor Subsidiary
to file, provide or furnish with or to any Person any report or information
separate from any report or information filed, provided or furnished by
Iridium to the extent Capital or any Guarantor Subsidiary would not be
required to do so under Section 13 or 15(d) of the Exchange Act or pursuant to
Rule 144A(d)(4) under the Securities Act.
SECTION 4.03. Limitation on Indebtedness.
(a) Iridium shall not, and shall not permit any Restricted
Subsidiary to, Incur any Indebtedness (including any Acquired Indebtedness)
unless (i) immediately after giving effect to the Incurrence of such
Indebtedness and the receipt and application of the proceeds thereof, the Debt
to Cash Flow Ratio would be less than 4.0 to 1.0 and (ii) if such Indebtedness
is Incurred by a Restricted Subsidiary, such Restricted Subsidiary is a
Guarantor Subsidiary. Notwithstanding the foregoing, prior to June 30, 2000,
Iridium, Capital and any other Restricted Subsidiary that is
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a Guarantor Subsidiary may Incur Indebtedness if immediately after giving
effect to the Incurrence of such Indebtedness and the receipt and application
of the proceeds thereof, the Debt to Capital Ratio would be less than 65%.
(b) Notwithstanding the foregoing paragraph (a), Iridium, Capital
and any other Restricted Subsidiary that is a Guarantor Subsidiary may Incur
the following Indebtedness:
(i) Indebtedness Incurred under any one or more Bank Credit
Agreements, Vendor Financing Facilities or other agreements or
arrangements to finance the Build-out of the IRIDIUM System; provided,
however, that Indebtedness Incurred pursuant to this clause (i), other
than Indebtedness Incurred pursuant to a Bank Credit Agreement or Vendor
Financing Facility, shall not have a Stated Maturity earlier than the
Stated Maturity of the Series B Notes, and shall not be mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or be
redeemable at the option of the holder thereof, in whole or in part,
prior to the Stated Maturity of the Series B Notes (other than pursuant
to provisions which are substantially similar to those contained in
Section 4.08 which permit the holders of such Indebtedness to require the
issuer thereof to repurchase or repay such Indebtedness upon a Change of
Control (or an event substantially similar thereto) or to make an offer
to purchase as a result of the occurrence of an Asset Disposition (or an
event substantially similar thereto) or receipt of insurance proceeds);
(ii) After Commercial Activation, Indebtedness under any one or
more Bank Credit Agreements or other agreements or arrangements to
finance working capital requirements of Iridium and any Refinancing
Indebtedness in respect of such Indebtedness; provided, however, at the
time of the Incurrence of such Indebtedness and after giving effect
thereto, the aggregate principal amount of all Indebtedness Incurred
pursuant to this clause (ii) and then outstanding does not exceed
$950,000,000;
(iii) Indebtedness Incurred under any one or more Bank Credit
Agreements, Vendor Financing Facilities or other agreements or
arrangements that is guaranteed pursuant to the Motorola Additional
Guarantee; provided, however, at the time of Incurrence of such
Indebtedness and after giving effect thereto, the aggregate principal
amount of all Indebtedness incurred pursuant to this clause (iii) and
then outstanding does not exceed $350,000,000;
(iv) Indebtedness owed by Iridium to Capital or any Wholly-Owned
Restricted Subsidiary that is a Guarantor Subsidiary or Indebtedness owed
by Capital or any Wholly-Owned Restricted Subsidiary that is a Guarantor
Subsidiary to Iridium or to Capital or another Wholly-Owned Restricted
Subsidiary that is a Guarantor Subsidiary; provided, however, that upon
either (x) the transfer or other disposition by Capital, such
Wholly-Owned Restricted Subsidiary or Iridium of any Indebtedness so
permitted to a Person other than Iridium, Capital or another Wholly-Owned
Restricted Subsidiary that is
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a Guarantor Subsidiary or (y) the issuance, sale, lease, transfer or other
disposition of shares of Capital Stock (including by consolidation or merger,
but not including directors' qualifying shares or interests required to be
held by foreign nationals, in each case to the extent mandated by applicable
law) of such Wholly-Owned Restricted Subsidiary or Capital to a Person other
than Iridium, Capital or another such Wholly-Owned Restricted Subsidiary, the
provisions of this clause (iv) shall no longer be applicable to such
Indebtedness and such Indebtedness shall be deemed to have been Incurred by
the issuer thereof at the time of such issuance, sale, lease, transfer or
other disposition;
(v) Refinancing Indebtedness Incurred to Refinance Indebtedness
Incurred pursuant to Section 4.03(a) or pursuant to clause (i), (ii),
(iii), (vii) or (viii) or this clause (v) of this Section 4.03(b);
(vi) Indebtedness consisting of Permitted Interest Rate or Currency
Protection Agreements;
(vii) Indebtedness represented or evidenced by the Series B Notes,
the Subsidiary Guaranties, the Series A Notes, and Indebtedness of the
Guarantor Subsidiaries evidenced by their Guarantees relating to the
Series A Notes;
(viii) Indebtedness outstanding on the Issue Date (other than the
Guaranteed Bank Facility and other Indebtedness described in clause (i),
(ii), (iii), (iv) or (vii) of this Section 4.03(b));
(ix) Indebtedness consisting of performance and other similar bonds
and reimbursement obligations Incurred in the ordinary course of business
securing the performance of contractual, franchise or license obligations
of Iridium, Capital or a Restricted Subsidiary, or in respect of a letter
of credit obtained to secure such performance; and
(x) Indebtedness in an aggregate principal amount which, together
with all other Indebtedness of Iridium, Capital and other Restricted
Subsidiaries that are Guarantor Subsidiaries outstanding on the date of
such Incurrence (without duplication and other than Indebtedness
permitted by clauses (i) through (ix) above or Section 4.03(a)) does not
exceed $100,000,000.
(c) For purposes of determining compliance with this covenant, in
the event that an item of Indebtedness meets the criteria of more than one of
the types of Indebtedness Iridium, Capital and the other Restricted
Subsidiaries are permitted to Incur, Iridium, Capital or such Restricted
Subsidiary, as the case may be, shall have the right, in Iridium's sole
discretion, to classify such item of Indebtedness at the time of its
Incurrence and shall only be required to
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include the amount and type of such Indebtedness under the clause permitting
the Indebtedness as so classified.
SECTION 4.04. Limitation on Restricted Payments. (a) Iridium
shall not, and shall not permit any Restricted Subsidiary, directly or
indirectly, to:
(i) declare or pay any dividend or make any distribution on or in
respect of its Capital Stock (including any payment in connection with
any merger or consolidation involving the Note Issuers), except dividends
or distributions payable solely in its Capital Stock (other than
Disqualified Stock) and cash to the extent required to pay for fractional
shares of such Capital Stock or payable to Iridium or another Restricted
Subsidiary (and, if such Restricted Subsidiary has shareholders other
than the Note Issuers or other Restricted Subsidiaries, to its other
shareholders on a pro rata basis or on a basis that results in the
receipt by the Note Issuers or a Restricted Subsidiary of dividends or
distributions of equal or greater value);
(ii) purchase, redeem, retire or otherwise acquire for value any
Capital Stock of Iridium or any Restricted Subsidiary held by Persons
other than Iridium or another Restricted Subsidiary;
(iii) purchase, repurchase, redeem, defease, acquire or retire for
value, or otherwise make any principal payment on, any Subordinated
Obligations prior to the scheduled maturity, scheduled repayment or
scheduled sinking fund payment thereof (other than the purchase,
repurchase or other acquisition of Subordinated Obligations purchased in
anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case due within one year of the
date of acquisition, or any purchase, repurchase, redemption or other
acquisition or prepayment thereof in connection with any Refinancing
thereof permitted pursuant to clause (v) of paragraph (b) of Section
4.03; or
(iv) make any Investment (other than a Permitted Investment) in any
Person (any such dividend, distribution, purchase, redemption,
repurchase, defeasance, other acquisition, retirement, Investment or
payment being herein referred to as a "Restricted Payment"), if at the
time Iridium or such Restricted Subsidiary makes such Restricted Payment:
(1) a Default has occurred and is continuing (or would result therefrom);
(2) Iridium could not Incur at least $1.00 of additional Indebtedness
pursuant to the terms of the first sentence of paragraph (a) of Section
4.03; or (3) the aggregate amount of such Restricted Payment and all
other Restricted Payments declared or made subsequent to the Issue Date
would exceed the sum of:
(A) 50% of the Consolidated Net Income of Iridium accrued
during the period (treated as one accounting period) from the
beginning of the fiscal quarter
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immediately following the fiscal quarter during which the Issue Date
occurs to the end of the most recent fiscal quarter for which
internal financial statements are available at the time of such
Restricted Payment (or, in case such Consolidated Net Income is a
deficit, minus 100% of such deficit); provided, however, that the
aggregate amount calculated pursuant to this clause (A) (if such
aggregate amount is a negative amount) shall be reset to zero on the
first date on which the Series B Notes are assigned an Investment
Grade Rating by both Rating Agencies;
(B) the aggregate Net Cash Proceeds received by Iridium from
the issuance or sale of its Capital Stock (other than Disqualified
Stock) subsequent to the Issue Date (other than an issuance or sale
to a Restricted Subsidiary and other than an issuance or sale to an
employee stock ownership plan or to a trust established by Iridium
or any Restricted Subsidiaries for the benefit of their employees);
(C) the amount by which Indebtedness of Iridium is reduced on
the balance sheet of Iridium upon the conversion or exchange (other
than by a Restricted Subsidiary) subsequent to the Issue Date of any
Indebtedness of Iridium convertible or exchangeable for Capital
Stock (other than Disqualified Stock) of Iridium (less the amount of
any cash, or the fair value of any other property or assets of
Iridium or any Restricted Subsidiary, distributed by Iridium upon
such conversion or exchange); and
(D) an amount equal to the sum of (i) the net reduction in
Investments in Unrestricted Subsidiaries resulting from dividends,
repayments of loans or advances or other transfers of assets, in
each case to Iridium or any Restricted Subsidiary from Unrestricted
Subsidiaries, and (ii) the portion (proportionate to Iridium's
equity interest in such Subsidiary) of the fair market value of the
net assets of an Unrestricted Subsidiary (as evidenced by a
resolution of the Board of Directors in the manner set forth in
Section 4.04(c)) at the time such Unrestricted Subsidiary is
designated a Restricted Subsidiary; provided, however, that the
foregoing sum does not exceed, in the case of any Unrestricted
Subsidiary, the amount of Investments previously made (and treated
as a Restricted Payment) by Iridium or any Restricted Subsidiary in
such Unrestricted Subsidiary.
(b) Notwithstanding the foregoing, Iridium may
(i) subject to clause (vii) below, pay any dividend on Capital
Stock of any class within 60 days after the declaration thereof if, on
the date when the dividend was declared, Iridium could have paid such
dividend in accordance with the foregoing provisions;
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(ii) repurchase any Capital Stock from Persons who were formerly
officers, managers or employees of Iridium or any of its Subsidiaries (or
from IWCL in connection with or relating to a repurchase by IWCL of its
Capital Stock from such Persons), provided, however, that the aggregate
amount of all such repurchases made pursuant to this clause (ii) shall
not exceed $2,000,000, plus the aggregate cash proceeds received by
Iridium since the Issue Date from the issuance of its Capital Stock to
officers, managers and employees of Iridium or any of its Subsidiaries
(or from IWCL in connection with or relating to such an issuance by IWCL
to such Persons);
(iii) Refinance, and permit its Restricted Subsidiaries to
Refinance, any Indebtedness otherwise permitted to be Refinanced by
clause (v) of paragraph (b) under Section 4.03.
(iv) during the period Iridium is treated as a partnership for
U.S. federal income tax purposes and after such period to the extent
relating to the liability for such period, make distributions in respect
of members' or partners' income tax liability with respect to Iridium
(whether directly incurred or indirectly incurred after the Asset
Drop-Down Transaction) in an amount not to exceed the Tax Amount;
(v) make distributions to IWCL to pay IWCL's ordinary and
reasonable operating expenses related to Iridium, as set forth in an
Officers' Certificate delivered to the Trustee;
(vi) repurchase any Capital Stock pursuant to Section 11.03 of the
LLC Agreement in the event a member of Iridium fails to pay any of the
amounts required by a Reserve Capital Call;
(vii) make any Restricted Payment by exchange for, or out of the
proceeds of the substantially concurrent sale of, or capital contribution
in respect of, Capital Stock of Iridium (other than Disqualified Stock
and other than Capital Stock issued or sold to a Subsidiary of Iridium or
an employee stock ownership plan or to a trust established by Iridium or
any of its Subsidiaries for the benefit of their employees);
(viii) make any Restricted Payment pursuant to the Interest
Exchange Agreement, the Share Issuance Agreement, the Master Subscription
Agreement or the Management Services Agreement; and
(ix) make other Restricted Payments in an aggregate amount not to
exceed $10,000,000.
Any Restricted Payment made pursuant to clauses (ii), (iii), (iv), (vii),
(viii) and (ix) of the immediately preceding paragraph shall be excluded from
the calculation of the aggregate
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amount of Restricted Payments made since the Issue Date; provided, however,
that the Net Cash Proceeds from the issuance of Capital Stock pursuant to
clauses (ii) and (vii) of the immediately preceding paragraph shall be
excluded from the calculation of amounts under clause (B) of the second
preceding paragraph. A dividend or distribution by a Restricted Subsidiary in
respect of its Capital Stock shall only be deemed to be a Restricted Payment
to the extent such dividend or distribution is paid to entities other than
Iridium and the Restricted Subsidiaries.
(c) The net proceeds from the issuance of shares of Capital Stock upon
conversion of Indebtedness shall be deemed to be an amount equal to (i) the
accreted value of such Indebtedness on the date of such conversion and
(ii) the additional consideration, if any, received by Iridium upon such
conversion thereof, less any cash payment on account of fractional shares.
The amount of all Restricted Payments (other than cash) shall be the fair
market value (evidenced by a resolution of the Board of Directors determined
in good faith and set forth in an Officers' Certificate delivered to the
Trustee) on the date of the Restricted Payment of the asset(s) proposed to be
transferred by Iridium or such Restricted Subsidiary, as the case may be,
pursuant to the Restricted Payment. Not later than the date of making any
Restricted Payment, Iridium shall deliver to the Trustee an Officers'
Certificate identifying each Restricted Payment made by Iridium during such
fiscal quarter and stating that such Restricted Payment is permitted and
setting forth the basis upon which the calculations required by this Section
4.04 were computed, which calculations may be based upon Iridium's latest
available financial statements. If Iridium makes a Restricted Payment which,
at the time of the making of such Restricted Payment, would in the good faith
determination of Iridium be permitted under this Indenture, such Restricted
Payment shall be deemed to have been made in compliance with this Indenture
notwithstanding any subsequent adjustments made in good faith to Iridium's
financial statements affecting Consolidated Net Income for any period.
SECTION 4.05. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. Iridium shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, create or otherwise cause or
permit to exist or become effective any consensual encumbrance or restriction
on the ability of any Restricted Subsidiary to (i) pay dividends or make any
other distributions to Iridium or any Restricted Subsidiary on its Capital
Stock or with respect to any other interest or participation in, or measured
by, its profits, (ii) pay any Indebtedness owed to Iridium or any Restricted
Subsidiary, (iii) make any loans or advances to Iridium or any Restricted
Subsidiary or (iv) transfer any of its property or assets to Iridium or any
Restricted Subsidiary, except:
(1) any encumbrance or restriction pursuant to an agreement
relating to the Guaranteed Bank Facility or any other agreement in effect
at or entered into on the Issue Date, or any encumbrance or restriction
imposed pursuant to this Indenture or the Series B Notes, the Series A
Indenture or the Series A Notes (or similar limitations pursuant to other
notes issued by Iridium, or indentures relating thereto, that are
substantially similar
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to those set forth in this Indenture), or any agreement relating to the
Secured Bank Facility;
(2) any encumbrance or restriction pursuant to an agreement
relating to any Acquired Indebtedness, which encumbrance or restriction
is not applicable to any Person, or the properties or assets of any
Person, other than the Person so acquired and its Subsidiaries;
(3) any encumbrance or restriction pursuant to (x) an agreement or
instrument pursuant to which Indebtedness which Refinances Indebtedness
Incurred pursuant to an agreement referred to in clause (1) or (2) or
this clause (3) is Incurred or contained in any amendment to an agreement
or instrument referred to in clause (1) or (2) or this clause (3), or
(y) Indebtedness Incurred pursuant to clause (i), (ii) or (iii) of
paragraph (b) of Section 4.03; provided, however, that the encumbrances
and restrictions contained in any such refinancing agreement, instrument
or amendment referred to in clause (x) above are, taken as a whole, no
more restrictive in any material respect than the encumbrances and
restrictions contained in the predecessor agreements (as determined by
the chief financial officer of Iridium in good faith and evidenced by a
certificate filed with the Trustee);
(4) any encumbrance or restriction contained in security agreements
or mortgages securing Indebtedness, or under any documents providing for
Capital Lease Obligations, of a Restricted Subsidiary which are not
prohibited by Section 4.12 herein to the extent such encumbrances or
restrictions restrict the assignment or transfer of the property or
assets subject to such security agreements or mortgages, or subject to
such Capital Lease Obligations;
(5) any encumbrance or restriction existing under or by reason of
applicable law or regulations;
(6) customary non-assignment provisions of any licensing agreement
or of any lease but only to the extent such provisions restrict the
transfer of the license, lease or the property thereunder;
(7) any encumbrance or restriction contained in contracts for sales
of assets otherwise permitted by this Indenture;
(8) with respect to a Restricted Subsidiary, any encumbrance or
restriction imposed pursuant to an agreement that has been entered into
for the sale of all or substantially all of the Capital Stock of such
Restricted Subsidiary; provided, however, that after giving effect to
such transaction no Default shall have occurred or be continuing, that
such restriction terminates if such transaction is not consummated and
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that such consummation or abandonment of such transaction occurs within
one year of the date such agreement was entered into;
(9) any encumbrance or restriction, with respect to a Restricted
Subsidiary that is not a Restricted Subsidiary on the date of this
Indenture, in existence at the time such Person becomes a Restricted
Subsidiary and not incurred in connection with, or in contemplation of,
such Person becoming a Restricted Subsidiary; and
(10) any restriction on the sale or other disposition of assets or
property securing Indebtedness as a result of a Permitted Lien on such
assets or property.
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock.
(a) Iridium shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, make any Asset Disposition unless:
(i) Iridium or such Restricted Subsidiary, as the case may be,
receives consideration at the time of such Asset Disposition at least
equal to the fair market value (including the value of all non-cash
consideration) of the shares and assets subject to such Asset
Disposition, as determined by the Board of Directors in good faith and
evidenced by a resolution filed with the Trustee;
(ii) at least 80% of the consideration therefor received by Iridium
or such Restricted Subsidiary, as the case may be, consists of cash or
Marketable Securities (provided that an amount equal to the fair value
(as determined in good faith by the Board of Directors as evidenced by a
resolution filed with the Trustee) of assets utilized or to be utilized
in a Related Business and received by Iridium or any Restricted
Subsidiary in connection with any Asset Disposition shall be treated as
cash solely for purposes of this clause (ii)) or the assumption of
Indebtedness of Iridium (other than Indebtedness that is a Subordinated
Obligation) or the Restricted Subsidiary, as the case may be, and the
release of Iridium or such Restricted Subsidiary, as the case may be,
from all liability on the Indebtedness assumed; and
(iii) all Net Available Proceeds, less any amounts invested within
180 days of such disposition (or committed by such 180th day for
investment pursuant to a written agreement which commits such investment
within 180 days after the date of such agreement) in assets that comply
with Section 4.13, are applied within 180 days of such Asset Disposition
(1) first, to the permanent repayment or reduction of Indebtedness then
outstanding under any Bank Credit Agreement or Vendor Financing Facility,
to the extent such agreement or facility would require such application
or prohibit payments pursuant to the following clause (2), (2) second, to
the extent of remaining Net Available Proceeds, to make an Offer to
Purchase outstanding Series B Notes at a purchase price in cash equal to
100% of the principal amount of the Series B Notes plus accrued and
unpaid interest
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and Liquidated Damages, if any, to the date of purchase and, to the
extent required by the terms thereof, any other Indebtedness of Iridium
or a Restricted Subsidiary that ranks pari passu with the Series B Notes
at a purchase price no greater than 100% of the principal amount thereof
plus accrued and unpaid interest and liquidated damages, if any, to the
date of purchase and (3) third, to the extent of any remaining Net
Available Proceeds after application of clauses (1) and (2) of this
Section 4.06(a)(iii), to the repayment of other Indebtedness of Iridium
or Indebtedness of a Restricted Subsidiary, to the extent permitted under
the terms thereof. To the extent any Net Available Proceeds remain after
such uses, Iridium and the Restricted Subsidiaries may use such amounts
for any purposes not prohibited by this Indenture. Notwithstanding the
foregoing, (x) these provisions shall not apply to any Asset Disposition
which constitutes a transfer, conveyance, sale, lease or other
disposition of all or substantially all of Iridium's, Capital's or a
Guarantor Subsidiary's properties or assets as described under Article V
and (y) Iridium shall not be required to repurchase or redeem Series B
Notes pursuant to clause (2) of this Section 4.06(a)(iii) until Net
Available Proceeds from all Asset Dispositions in the aggregate, less (x)
any amounts invested within 180 days of such dispositions (or committed
by such 180th day for investment pursuant to a written agreement which
commits such investment within 180 days after the date of such agreement)
in a Related Business, (y) any amounts applied pursuant to clause (1)
above and (z) any amounts previously applied pursuant to clause (1), (2)
or (3) of this Section 4.06(a)(iii), are greater than $10,000,000.
(b) The Note Issuers shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Series B Notes
pursuant to this Section 4.06. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this covenant, the
Issuers shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached their obligations described under
Section 4.06 by virtue thereof.
SECTION 4.07. Limitation on Transactions with Affiliates. (a)
Iridium shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, enter into any transaction (including the purchase, sale, lease
or exchange of any property or the rendering of any service) with any
Affiliate or Related Person of Iridium (other than Iridium or a Wholly-Owned
Restricted Subsidiary) that involves consideration in excess of $5,000,000 (an
"Affiliate Transaction") on terms (i) that, taken as a whole, are less
favorable to Iridium or such Restricted Subsidiary, as the case may be, than
those that could be obtained at the time of such transaction in arm's-length
dealings with a Person who is not such an Affiliate and (ii) that, in the
event such Affiliate Transaction involves an aggregate amount in excess of
$10,000,000, are not in writing and have not been approved either by a
majority of the members of the Board of Directors having no material direct or
indirect financial interest in or with respect to such Affiliate Transaction
or by the Related Party Contracts Committee, as defined by the LLC Agreement
(if appropriate under Iridium's Bylaws or the LLC Agreement). In addition, if
such
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Affiliate Transaction is an Asset Disposition involving any Affiliate or
Related Person of Iridium (other than Iridium or a Wholly-Owned Restricted
Subsidiary) for an aggregate consideration in excess of $25,000,000, a
fairness opinion to the effect that such transaction is fair (from a financial
point of view) to Iridium or the Restricted Subsidiary, as applicable, must be
obtained from an Independent Financial Advisor or, with respect to
telecommunications-related matters, a recognized expert in the satellite
telecommunications industry.
(b) The provisions of the paragraph (a) of this Section 4.07(a)
shall not apply to:
(i) employee benefit or compensation arrangements entered into in
the ordinary course of business and approved by the Board of Directors;
(ii) transactions solely between or among Iridium and the
Restricted Subsidiaries;
(iii) Restricted Payments permitted by Section 4.04;
(iv) Investments by IWCL, an Affiliate or Related Person of Iridium
or Capital in the Capital Stock (other than Disqualified Stock) of
Iridium or any Restricted Subsidiary; and
(v) a transaction pursuant to an Existing Affiliate Agreement,
including any amendments thereto entered into after the Issue Date,
provided that the terms of any such amendment are not, taken as a whole,
less favorable to Iridium than the terms of the relevant agreement prior
to such amendment.
SECTION 4.08. Change of Control. (a) Upon the occurrence of a
Change of Control, each Holder shall have the right to require the Note
Issuers to repurchase all or any part of such Holder's Series B Notes at a
purchase price in cash equal to 101% of the principal amount of the Series B
Notes, plus accrued and unpaid interest and Liquidated Damages, if any, to the
date of purchase (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date in
accordance with the terms of this Indenture); provided, however, that
notwithstanding the occurrence of a Change of Control, the Note Issuers shall
not be obligated to purchase any Series B Note pursuant to this Section 4.08
to the extent that the Note Issuers have exercised their rights to redeem such
Series B Note as described in Section 3.07.
(b) Within 30 days following any Change of Control, the Note
Issuers shall mail a notice to each Holder with a copy to the Trustees
stating, among other things: (1) that a Change of Control has occurred and
that such Holder has the right to require the Note Issuers to purchase all or
any portion of such Holder's Series B Notes at a purchase price in cash equal
to 101% of the principal amount of such Series B Notes, plus accrued and
unpaid interest and Liquidated Damages, if any, to the date of purchase
(subject to the right of Holders of record on a
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record date to receive interest due on the relevant interest payment date in
accordance with the terms of this Indenture); (2) the circumstances and
relevant facts regarding such Change of Control (including information with
respect to pro forma historical income, cash flow and capitalization, each
after giving effect to such Change of Control); (3) the repurchase date (which
shall be no earlier than 30 days nor later than 60 days from the date such
notice is mailed); and (4) the instructions determined by the Note Issuers,
consistent with this Section 4.08, that a Holder must follow in order to have
its Series B Notes or any portion thereof purchased.
(c) The Note Issuers shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Series B Notes
pursuant to this Section 4.08. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section 4.08,
the Note Issuers shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached their obligations
described above by virtue thereof.
SECTION 4.09. Compliance Certificate. The Note Issuers shall
deliver to the Trustee within 120 days after the end of each fiscal year of
the Note Issuers an Officers' Certificate complying with Section 314(a)(4) of
the TIA and stating that in the course of the performance by the signers of
their duties as Officers of the Note Issuers they would normally have
knowledge of any Default or Event of Default and, if such signer does know of
such a Default or Event of Default, the certificate shall describe such
Default or Event of Default with particularity and describe what actions, if
any, the Note Issuers propose to take with respect to such Default or Event of
Default.
SECTION 4.10. [Reserved]
SECTION 4.11. Limitation on the Sale or Issuance of Capital Stock
of Restricted Subsidiaries. Iridium shall not, and shall not permit any
Restricted Subsidiary to, issue, transfer, convey, sell or otherwise dispose
of any shares of Capital Stock of a Restricted Subsidiary or securities
convertible or exchangeable into Capital Stock of a Restricted Subsidiary or
securities convertible or exchangeable into Capital Stock of a Restricted
Subsidiary to any person other than Iridium, Capital or a Wholly-Owned
Restricted Subsidiary except (i) in a transaction consisting of a sale of all
the Capital Stock of such Restricted Subsidiary and that complies with
Section 4.06 to the extent such provisions apply; (ii) if required, the
issuance, transfer, conveyance, sale or other disposition of directors'
qualifying shares or of interests required to be held by foreign nationals, in
each case to the extent mandated by applicable law; (iii) in a transaction in
which, or in connection with which, Iridium or a Restricted Subsidiary
acquires at the same time sufficient Capital Stock of such Restricted
Subsidiary to at least maintain the same percentage ownership interest it had
prior to such transaction; (iv) any grant, establishment or exercise of any
Lien permitted under Section 4.12; and (v) Disqualified Stock of a Restricted
Subsidiary Incurred to Refinance Disqualified Stock of such Restricted
Subsidiary; provided, however, that the amounts of the redemption obligations
of such Disqualified Stock may not
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exceed the amounts of the redemption obligations of, and such Disqualified
Stock shall have redemption obligations no earlier than those required by, the
Disqualified Stock being Refinanced.
SECTION 4.12. Limitation on Liens. (a) Iridium shall not, and
shall not permit any Restricted Subsidiary to, directly or indirectly, create
or permit to exist any Lien on any of its property or assets (including
Capital Stock), whether owned on the Issue Date or thereafter acquired, unless
contemporaneously therewith effective provision is made to secure the Series B
Notes equally and ratably with such obligation for so long as such obligation
is so secured. The preceding sentence shall not require Iridium or any
Restricted Subsidiary to equally and ratably secure the Series B Notes if the
Lien consists of Permitted Liens.
(b) Any Lien created for the benefit of the Holders of the Series B
Notes pursuant to Section 4.12(a) shall provide by its terms that such Lien
shall be automatically and unconditionally released and discharged upon the
earlier of the release and discharge of the Lien which gave rise to the
obligation to secure the Series B Notes and the release and discharge of this
Indenture.
SECTION 4.13. Limitation on Lines of Business. Iridium shall not,
and shall not permit any Restricted Subsidiary to, engage in any business
other than a Related Business.
SECTION 4.14. Limitation on Business Activities of Capital.
Capital shall not hold any material assets, become liable for any material
obligations, engage in any trade or business, or conduct any business
activity, other than the issuance of Capital Stock to Iridium or any
Wholly-Owned Restricted Subsidiary, the Incurrence of Indebtedness as a
co-obligor or guarantor of Indebtedness Incurred by Iridium (including the
Series B Notes and the Series A Notes) that is permitted to be Incurred by
Iridium pursuant to Section 4.03 (provided that the net proceeds of such
Indebtedness are retained or utilized by Iridium or loaned to one or more of
Iridium's Restricted Subsidiaries other than Capital), and activities
incidental thereto. Neither Iridium nor any Restricted Subsidiary (other than
Capital) shall engage in any transactions with Capital in violation of the
immediately preceding sentence.
SECTION 4.15. Future Guarantor Subsidiaries. Iridium shall cause
each Subsidiary created or acquired after the Issue Date (other than an
Unrestricted Subsidiary or a Foreign Subsidiary) to execute and deliver to the
Trustee a supplemental indenture, substantially in the form of Exhibit D,
pursuant to which such Subsidiary shall Guarantee payment of the Series B
Notes. Iridium may cause any Foreign Subsidiary to execute and deliver a
Subshdiary Guaranty in accordance with the provisions of this Indenture. Each
Subsidiary Guaranty shall be limited to an amount not to exceed the maximum
amount that can be Guaranteed by that Subsidiary without rendering the
Subsidiary Guaranty, as it relates to such Subsidiary, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally. In addition, the
Note Issuers shall not, and shall not
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permit any of the Guarantor Subsidiaries to, make any Investment in any
Subsidiary that is not a Guarantor Subsidiary unless either (i) such
Investment is permitted by Section 4.04 or (ii) such Subsidiary executes and
delivers a Subsidiary Guaranty in accordance with the provisions of this
Indenture.
SECTION 4.16. Maintenance of Insurance. Iridium shall procure and
maintain insurance with financially sound and reputable insurance companies in
such amounts, with such deductibles and covering such risks as is customarily
carried by companies engaged in a business or businesses similar to Iridium
and owning properties in localities where Iridium and the Restricted
Subsidiaries operate, including without limitation in-orbit insurance.
Within 30 days following the Issue Date and within 30 days following
any date on which Iridium renews or obtains insurance, Iridium shall deliver
to the Trustee an insurance certificate certifying the amount of insurance
then renewed or obtained and an Officers' Certificate stating that such
insurance, together with any other insurance, complies with this Section 4.16.
In addition, Iridium shall cause to be delivered to the Trustee no less than
once each year an insurance certificate setting forth the amount of insurance
then carried, which insurance certificate shall entitle the Trustee to (i)
notice of any claim under any such insurance policy; and (ii) at least
30 days' notice from the provider of such insurance prior to the cancellation
of any such insurance.
In the event that Iridium receives any proceeds of any in-orbit
insurance, such proceeds shall constitute "Insurance Proceeds." Promptly
following the receipt of any Insurance Proceeds, Iridium shall apply such
Insurance Proceeds in accordance with Section 4.06(a)(iii) (treating such
Insurance Proceeds as Net Available Proceeds thereunder); provided, however,
that Insurance Proceeds shall only be required to be so applied to the extent
that the aggregate amount of all Insurance Proceeds received by Iridium
exceeds $10,000,000 in any 12-month period.
ARTICLE V
Successor Companies
SECTION 5.01. When Issuers May Merge or Transfer Assets. (a)
Neither Note Issuer shall consolidate with or merge with or into, or convey,
transfer or lease, in one transaction or a series of transactions, all or
substantially all its assets to any Person unless:
(i) the resulting, surviving or transferee Person (the "Successor
Company") shall be a Person organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia
or the laws of Bermuda and the Successor Company (if not Iridium) shall
expressly assume, by an indenture supplemental hereto,
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executed and delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of Iridium under the Series B Notes and this
Indenture;
(ii) immediately after giving effect to such transaction on a pro
forma basis (and treating any Indebtedness which becomes an obligation of
the Successor Company or any Subsidiary as a result of such transaction
as having been Incurred by such Successor Company or such Subsidiary at
the time of such transaction), no Default shall have occurred and be
continuing;
(iii) immediately after giving effect to such transaction, the
Successor Company would be able to Incur an additional $1.00 of
Indebtedness under Section 4.03(a);
(iv) immediately after giving effect to such transaction, the
Successor Company shall have Consolidated Net Worth in an amount which is
not less than the Consolidated Net Worth of Iridium immediately prior to
such transaction; and
(v) Iridium shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture.
The requirements of clause (iii) above shall not apply where Iridium merges
with or into, or conveys, transfers or leases, in one transaction or a series
of transactions, all or substantially all of its assets to, any Person with no
outstanding Indebtedness (other than Indebtedness which is also Indebtedness
of Iridium).
(b) Iridium may within six months of the Issue Date convey or
transfer in one transaction or a series of related transactions, all or
substantially all its assets to a Wholly-Owned Restricted Subsidiary of
Iridium upon compliance with clauses (i) and (v) of the preceding paragraph
(and without complying with clauses (ii) through (iv), inclusive, of the
preceding paragraph) (the "Asset Drop-Down Transaction").
(c) Iridium shall not permit any Guarantor Subsidiary to
consolidate with or merge with or into, or convey, transfer or lease, in one
transaction or a series of transactions, all or substantially all of its
assets to any Person unless: (i) the resulting, surviving or transferee Person
(if not such Subsidiary) is a Person organized and existing under the laws of
the jurisdiction under which such Subsidiary was organized or under the laws
of the United States of America, or any State thereof, the District of
Columbia or the laws of Bermuda, and such Person expressly assumes, by a
guaranty agreement, in a form satisfactory to the Trustee, all the obligations
of such Subsidiary, if any, under its related Subsidiary Guaranty (except to
the extent it would not otherwise have been required to provide a Subsidiary
Guaranty); (ii) immediately after giving effect to such transaction on a pro
forma basis (and treating any Indebtedness which becomes an obligation of the
resulting, surviving or transferee Person as a result of such
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transaction as having been issued by such Person at the time of such
transaction), no Default has occurred and is continuing under this Indenture;
and (iii) Iridium has delivered to the Trustee an Officer's Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer
and such guaranty agreement, if any, complies with this Indenture.
(d) The Successor Company shall be the successor to Iridium and
shall succeed to, and be substituted for, and may exercise every right and
power of, Iridium, Capital or any Guarantor Subsidiary, respectively, under
this Indenture, the Series B Notes and the related Subsidiary Guaranty, as
applicable, and the predecessor Iridium, Capital or Guarantor Subsidiary,
respectively (other than in the case of a lease), shall be released from all
obligations and covenants under this Indenture and the Series B Notes or the
related Subsidiary Guaranty, as applicable.
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default. An "Event of Default" occurs if:
(1) a default occurs in any payment of interest or Liquidated
Damages, if any, on any Series B Note when the same becomes due and
payable, and such default continues for a period of 30 days;
(2) a default occurs in the payment of the principal of any Series
B Note when the same becomes due and payable at its Stated Maturity, upon
optional redemption, upon required repurchase, upon declaration or
otherwise;
(3) either Note Issuer fails to comply with Section 5.01;
(4) either Note Issuer fails to comply with Section 4.03, 4.04,
4.05, 4.06, 4.07, 4.08, 4.11, 4.12, 4.13, 4.14, 4.15 and 4.16 (in each
case, other than a failure to purchase Series B Notes when required under
Section 4.06 or 4.08) and such failure continues for 30 days after the
notice specified in the penultimate paragraph of this Section 6.01;
(5) any Note Issuer or Guarantor Subsidiary fails to comply with
any of its agreements in the Series B Notes or this Indenture (other than
those referred to in clause (1), (2), (3) or (4) above) and such failure
continues for 60 days after the notice specified in the penultimate
paragraph 6.01;
(6) any Note Issuer or Significant Subsidiary fails to pay any
Indebtedness of such Person within any applicable grace period after
final maturity or the acceleration of any such Indebtedness by the
holders of such Indebtedness because of a default and the
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total amount of such Indebtedness unpaid or accelerated exceeds
$10,000,000 or its foreign currency equivalent at the time;
(7) any Note Issuer or Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in
an involuntary case;
(C) consents to the appointment of a Custodian of it or for
any substantial part of its property;
(D) makes a general assignment for the benefit of its
creditors; or
(E) takes any comparable action under any foreign laws
relating to insolvency;
(8) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against any Note Issuer or Significant
Subsidiary in an involuntary case;
(B) appoints a Custodian of any Note Issuer or Significant
Subsidiary or for any substantial part of its property; or
(C) orders the winding up or liquidation of any Note Issuer or
Significant Subsidiary; or
(D) or any similar relief is granted under foreign laws;
and the order or decree remains unstayed and in effect for 60 days;
(9) the rendering of any final judgment or decree (not subject to
appeal) in excess of $10,000,000 or its foreign currency equivalent (net
of amounts paid within 30 days of such judgment or decree under any
insurance, indemnity, bond, surety or similar instrument) against any
Note Issuer or Significant Subsidiary by a court or other adjudicatory
authority of competent jurisdiction to the extent which such Note Issuer
or Significant Subsidiary, as applicable, is not insured by a third
Person and such judgment
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or decree remains outstanding and is not discharged, waived or stayed
within 30 days after the notice specified in the penultimate paragraph of
this Section 6.01;
(10) any Subsidiary Guaranty ceases to be in full force and effect
(except as contemplated by the terms thereof) or any Guarantor Subsidiary
shall deny or disaffirm its obligations under this Indenture or any
Subsidiary Guaranty;
(11) termination by Motorola of the Space System Contract prior to
delivery thereunder by Motorola of the Space System (as defined therein),
provided that such termination has not been contested by Iridium in
accordance with the Space System Contract or by appropriate proceedings
and, if such termination is so contested, within 180 days of such notice
such termination has not been withdrawn or declared ineffective by any
recognized court or mediator; or
(12) termination by Motorola of the Operation and Maintenance
Contract, or Motorola ceases to be the operator of the IRIDIUM System
prior to the Stated Maturity of the Series B Notes, in each such case for
a period of more than 30 days.
The foregoing shall constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar
official under any Bankruptcy Law.
A Default under clause (4), (5) or (9) shall not constitute an Event
of Default until the Trustee or the Holders of at least 25% in principal
amount of the outstanding Series B Notes notify the Note Issuers of the
Default and the Note Issuers do not cure such Default within the time
specified in clauses (4), (5), or (9) hereof after receipt of such notice.
The Note Issuers shall deliver to the Trustee, within 30 days
thereof, written notice in the form of an Officers' Certificate of any Event
of Default under clause (3), (6), (7) or (10) and any event which with the
giving of notice or the lapse of time would become an Event of Default under
clause (4), (5), (8), (9), (11) or (12), its status and what action Iridium is
taking or proposes to take in respect thereof.
SECTION 6.02. Acceleration. If an Event of Default (other than an
Event of Default specified in Section 6.01(7) or 6.01(8) with respect to
either Note Issuer) occurs and is continuing, the Trustee by notice to the
Note Issuers, or the Holders of at least 25% in principal amount of the
outstanding Series B Notes by notice to the Note Issuers and the Trustee, may
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declare the principal of and accrued but unpaid interest and Liquidated
Damages, if any, on all of the Series B Notes to be due and payable. Upon
such a declaration, such principal, interest and Liquidated Damages, if any,
shall be due and payable immediately. If an Event of Default specified in
Section 6.01(7) or 6.01(8) with respect to either Note Issuer occurs and is
continuing, the principal of and interest and Liquidated Damages, if any, on
all the Series B Notes shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holders. The Holders of a majority in principal amount of the Series B Notes
by notice to the Trustee may rescind an acceleration and its consequences if
the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of acceleration. No
such rescission shall affect any subsequent Default or impair any right
consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of or interest on the Series B Notes or to enforce the
performance of any provision of the Series B Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Series B Notes or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy
is exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a majority
in principal amount of the Series B Notes by written notice to the Trustee may
waive an existing Default and its consequences except (i) a Default in the
payment of the principal of or interest on a Series B Note or (ii) a Default
in respect of a provision that under Section 9.02 cannot be amended without
the consent of each Holder affected. When a Default is waived, it is deemed
cured, but no such waiver shall extend to any subsequent or other Default or
impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority in
principal amount of the outstanding Series B Notes may direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or of exercising any trust or power conferred on the Trustee. However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture or, subject to Section 7.01, that the Trustee determines is unduly
prejudicial to the rights of other Holders or would involve the Trustee in
personal liability. Prior to taking any action hereunder, the Trustee shall
be entitled to indemnification satisfactory to it in its sole discretion
against all losses and expenses caused by taking or not taking such action.
SECTION 6.06. Limitation on Suits. A Holder may not pursue any
remedy with respect to this Indenture or the Series B Notes unless:
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(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the Series B
Notes then outstanding make a written request to the Trustee to pursue
the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security
or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security or indemnity; and
(5) the Holders of a majority in principal amount of the Series B
Notes do not give the Trustee a direction inconsistent with the request
during such 60-day period.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and interest on the Series B Notes held by
such Holder, on or after the respective due dates expressed in the Series B
Notes, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent
of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default
specified in Section 6.01(1) or 6.01(2) occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust
against the Note Issuers for the whole amount then due and owing (together
with interest on any unpaid interest to the extent lawful) and the amounts
provided for in Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may
file such proofs of claim and other papers or documents and take such other
actions, including participating as a member, voting or otherwise, of any
committee of creditors appointed in the matter, as may be necessary or
advisable in order to have the claims of the Trustee and the Holders allowed
in any judicial proceedings relative to the Note Issuers, any Guarantor
Subsidiary, their respective creditors or their property and, unless
prohibited by law or applicable regulations, may vote on behalf of the Holders
in any election of a trustee in bankruptcy or other Person performing similar
functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and
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advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.07.
Nothing herein shall be deemed to empower the Trustee to authorize
or consent to, or accept or adopt on behalf of any Holder, any plan of
reorganization, arrangement, adjustment or composition affecting the Series B
Notes or the rights of any Holder, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money or
property from the Issuers pursuant to this Article VI, it shall pay out the
money or property in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders for amounts due and unpaid on the Series B Notes
for principal and interest, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Series B Notes
for principal and interest, respectively; and
THIRD: to Iridium.
The Trustee may fix a record date and payment date for any payment
to Holders pursuant to this Section. At least 15 days before such record
date, the Trustee shall mail to each Holder and the Note Issuers a notice that
states the record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any
party litigant in the suit, having due regard to the merits and good faith of
the claims or defenses made by the party litigant. This Section 6.11 does not
apply to a suit by the Note Issuers, a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 or a suit by Holders of more than 10% in principal
amount of the Series B Notes.
SECTION 6.12. Waiver of Stay or Extension Laws. The Issuers (to
the extent it may lawfully do so) shall not at any time insist upon, or plead,
or in any manner whatsoever claim or take the benefit or advantage of, any
stay or extension law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this Indenture, any of
the Subsidiary Guaranties or any of the Series B Notes; and the Issuers (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and
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shall not hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 6.13. Restoration of Rights and Remedies. If the Trustee
or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to the Trustee or to such
Holder, then, and in every such case, subject to any determination in such
proceeding, the Issuers, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Issuers, Trustee and Holders shall continue as
though no such proceeding had been instituted.
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
its exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of
this Section and Section 7.02(e);
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(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a written
direction received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuers.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. Subject to Section 7.01: (a)
The Trustee may conclusively rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need
not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute wilful misconduct or negligence.
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(e) The Trustee may consult with counsel, and the advice or opinion
of counsel with respect to legal matters relating to this Indenture and the
Series B Notes shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder
in good faith and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers created in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction.
(g) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Series B
Notes and may otherwise deal with the Issuers or its Affiliates with the same
rights it would have if it were not Trustee. Any Paying Agent, Registrar,
co-registrar or co-paying agent may do the same with like rights. However,
the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Series B Notes, it shall not be accountable for the Note
Issuers' use of the proceeds from the Series B Notes, it shall not be
responsible for the use or application of any monies received by a Paying
Agent other than the Trustee, and it shall not be responsible for any
statement of the Issuers in this Indenture or in any document issued in
connection with the sale of the Series B Notes or in the Series B Notes other
than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Holder notice of such Default within the earlier of 90 days after it occurs or
30 days after it is known to a Trust Officer or written notice of it is
received by the Trustee. Except in the case of a Default in payment of
principal of, premium and Liquidated Damages, if any, or interest on any
Series B Note, the Trustee may withhold notice if and so long as a committee
of its Trust Officers in good faith determines that withholding the notice is
in the interests of Holders.
SECTION 7.06. Reports by Trustee to Holders. As promptly as
practicable after each May 15 beginning with May 15, 1998, and in any event
prior to July 15, 1998, in each year, the Trustee shall mail to each Holder a
brief report dated as of July 15, 1998, that complies with TIA Section 313(a)
(but if no event described in TIA Section 313(a) has occurred within the
twelve months
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preceding the reporting date, no report shall be transmitted). The Trustee
shall also comply with TIA Section 313(b) and TIA Section 313(c).
A copy of each report at the time of its mailing to Holders shall be
filed with the SEC and each stock exchange (if any) on which the Series B
Notes are listed. The Note Issuers agrees to notify promptly the Trustee
whenever the Series B Notes become listed on any stock exchange and of any
delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Note Issuers shall
pay to the Trustee, Paying Agent and Registrar from time to time reasonable
compensation for its services as agreed between the Note Issuers and the
Trustee, Paying Agent and Registrar. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The
Issuers shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred or made by it, including costs of collection,
in addition to the compensation for its services. Such expenses shall include
the reasonable compensation and expenses, disbursements and advances of the
Trustee's agents, counsel, accountants and other professionals. Any costs and
expenses associated with the Exchange Offer or Private Offer shall be paid by
the Note Issuers. The Note Issuers shall indemnify the Trustee, Paying Agent,
Registrar, and each of their officers, directors and employees (each in their
respective capacities), for and hold each of them harmless against any and all
loss, liability or expense (including attorneys' fees) incurred by them
without negligence or bad faith on their part in connection with the
administration of this trust and the performance of their duties hereunder,
including the reasonable costs and expenses of defending itself against any
claim or liability in connection with the acceptance, exercise or performance
of any of its powers or duties hereunder. The Trustee, Paying Agent and
Registrar shall notify the Note Issuers of any claim for which they may seek
indemnity promptly upon obtaining knowledge thereof; provided, however that
any failure so to notify the Note Issuers shall not relieve the Note Issuers
of their indemnity obligations hereunder except to the extent the Issuers
shall have been adversely affected thereby. The Note Issuers shall defend the
claim and the indemnified party shall provide reasonable cooperation at the
Note Issuers' expense in the defense. Such indemnified parties may have
separate counsel and the Note Issuers shall pay the fees and expenses of such
counsel; provided, however that the Note Issuers shall not be required to pay
such fees and expenses if it assumes such indemnified parties' defense and, in
such indemnified parties' reasonable judgment, there is no conflict of
interest between the Note Issuers and such parties in connection with such
defense. The Note Issuers need not pay for any settlement made without their
written consent. The Note Issuers need not reimburse any expense or indemnify
against any loss, liability or expense incurred by an indemnified party
through such party's own wilful misconduct, negligence or bad faith.
The Note Issuers' payment obligations pursuant to this Section shall
survive the discharge of this Indenture. When the Trustee, Paying Agent or
Registrar incurs expenses after the occurrence of a Default specified in
Section 6.01(7) or 6.01(8) with respect to the Issuers, the expenses are
intended to constitute expenses of administration under the Bankruptcy Law.
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SECTION 7.08. Replacement of Trustee. The Trustee may resign at
any time by so notifying the Note Issuers in writing. The Holders of a
majority in principal amount of the Series B Notes may remove the Trustee by
so notifying the Note Issuers and the Trustee and may appoint a successor
Trustee with the consent of the Note Issuers, which shall not be unreasonably
withheld. The Note Issuers shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Note Issuers or by the
Holders of a majority in principal amount of the Series B Notes and such
Holders do not reasonably promptly appoint a successor Trustee, or if a
vacancy exists in the office of Trustee for any reason (the Trustee in such
event being referred to herein as the retiring Trustee), the Note Issuers
shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Note Issuers. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
10% in principal amount of the Series B Notes may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Issuers' obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets
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to, another corporation or banking association, the resulting, surviving or
transferee corporation without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Series B Notes shall have been authenticated but
not delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Series B Notes so
authenticated; and in case at that time any of the Series B Notes shall not
have been authenticated, any successor to the Trustee may authenticate such
Series B Notes either in the name of any predecessor hereunder or in the name
of the successor to the Trustee; and in all such cases such certificates shall
have the full force which it is anywhere in the Series B Notes or in this
Indenture provided that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at
all times satisfy the requirements of TIA Section 310(a). The Trustee shall
have a combined capital and surplus of at least $50,000,000 as set forth in
its most recent published annual report of condition. The Trustee shall
comply with TIA Section 310(b); provided, however, that there shall be
excluded from the operation of TIA Section 310(b)(1) any indenture or
indentures under which other securities or certificates of interest or
participation in other securities of the Issuers are outstanding if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Issuers.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Series B Notes; Defeasance.
(a) When (i) either Note Issuer delivers to the Trustee all outstanding
Series B Notes (other than Series B Notes replaced pursuant to Section 2.07)
for cancellation or (ii) all outstanding Series B Notes have become due and
payable, whether at maturity or as a result of the mailing of a notice of
redemption pursuant to Article III hereof and either Note Issuer irrevocably
deposits with the Trustee funds or Government Securities on which payment of
principal and interest when due shall be sufficient to pay at maturity or upon
redemption all outstanding Series B Notes, including interest thereon to
maturity or such redemption date (other than Series B Notes replaced pursuant
to Section 2.07), as certified to the Trustee by a nationally recognized firm
of independent accountants, and if in either case the Note Issuers pay all
other sums payable hereunder by the Note Issuers including, but not limited to
fees and expenses of the Trustee and its counsel, then this Indenture shall,
subject to Section 8.01(c), cease to be of further effect. The
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Trustee shall acknowledge satisfaction and discharge of this Indenture on
demand of either Note Issuer accompanied by an Officers' Certificate and an
Opinion of Counsel.
(b) Subject to Sections 8.01(c), 8.02 and 8.06, the Note Issuers at
any time may terminate (i) all its obligations under the Series B Notes and
this Indenture ("legal defeasance option") or (ii) its obligations under
Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.11, 4.12, 4.13, 4.14,
4.15, 4.16, 5.01(a)(ii), 5.01(a)(iii) and 5.01(a)(iv) and the operation of
Sections 6.01(4), 6.01(5) (with respect to obligations that have been
defeased), 6.01(6), 6.01(7) (with respect to Significant Subsidiaries only),
6.01(8) (with respect to Significant Subsidiaries only), 6.01(9), 6.01(10),
6.01(11) and 6.01(12) ("covenant defeasance option"). The Note Issuers may
exercise their legal defeasance option notwithstanding their prior exercise of
its covenant defeasance option. If the Note Issuers exercise their legal
defeasance option or their covenant defeasance option, each Guarantor
Subsidiary shall be released from all of its obligations with respect to its
Subsidiary Guaranty (and no Restricted Subsidiary (other than Capital) will
thereafter be obligated to execute, deliver or endorse any Series B Note; nor
shall any such execution, delivery or endorsement thereafter bind any
Restricted Subsidiary).
If the Note Issuers exercise their legal defeasance option, payment
of the Series B Notes may not be accelerated because of an Event of Default.
If the Note Issuers exercise their covenant defeasance option, payment of the
Series B Notes may not be accelerated because of an Event of Default specified
in Sections 6.01(4), 6.01(5) (with respect to obligations that have been
defeased), 6.01(6), 6.01(7) (with respect to Significant Subsidiaries only),
6.01(8) (with respect to Significant Subsidiaries only), 6.01(9), 6.01(10),
6.01(11) and 6.01(12) or because of the failure of the Note Issuers to comply
with Sections 5.01(ii), 5.01(iii) and 5.01(iv).
Upon satisfaction of the conditions set forth herein and upon
request of either Note Issuer, the Trustee shall acknowledge in writing the
discharge of those obligations that have been discharged, released, satisfied
or defeased.
(c) Notwithstanding clauses (a) and (b) above, the Note Issuers'
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 7.07, 7.08, 8.04, 8.05
and 8.06 shall survive until the Series B Notes have been paid in full.
Thereafter, the Note Issuers' obligations in Sections 7.07, 8.04 and 8.05
shall survive.
SECTION 8.02. Conditions to Defeasance. The Note Issuers may
exercise their legal defeasance option or its covenant defeasance option only
if:
(1) either Note Issuer irrevocably deposits in trust with the
Trustee money and/or Government Securities for the payment of principal,
premium and Liquidated Damages, if any, and interest on the Series B
Notes to maturity or redemption, as the case may be;
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(2) the Note Issuers deliver to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited Government Securities plus any deposited
money without investment shall provide cash at such times and in such
amounts as shall be sufficient to pay principal and interest when due on
all the Series B Notes to maturity or redemption, as the case may be;
(3) 90 days pass after the deposit is made and during the 90-day
period no Default specified in Section 6.01(7) or 6.01(8) with respect to
either Note Issuer occurs which is continuing at the end of the period;
(4) the deposit does not constitute a default under any other
agreement binding on either Note Issuer;
(5) the Note Issuers deliver to the Trustee an Opinion of Counsel to
the effect that the trust resulting from the deposit does not constitute,
or is qualified as, a regulated investment company under the Investment
Company Act of 1940, unless such trust shall be registered under and act
as exempt from registration thereunder;
(6) in the case of the legal defeasance option, the Note Issuers
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Note Issuers have received from, or there has been published by,
the Internal Revenue Service a ruling, or (ii) since the date of this
Indenture there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders will not recognize income, gain
or loss for federal income tax purposes as a result of such defeasance
and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
defeasance had not occurred;
(7) in the case of the covenant defeasance option, the Note Issuers
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders will not recognize income, gain or loss for federal
income tax purposes as a result of such covenant defeasance and will be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such covenant defeasance
had not occurred; and
(8) the Note Issuers delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Securities as
contemplated by this Article VIII have been complied with.
Anything in this Section 8.02 to the contrary notwithstanding, the
Trustee shall deliver or pay to Iridium from time to time upon the request, in
writing, by either Note Issuer any
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cash in dollars or Government Securities held by it as provided in paragraph
(d) above which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, are in excess of the amount thereof which would then be required
to be deposited to effect an equivalent legal defeasance or covenant
defeasance.
Before or after a deposit, the Note Issuers may make arrangements
satisfactory to the Trustee for the redemption of Series B Notes at a future
date in accordance with Article III.
SECTION 8.03. Application of Trust Money. The Trustee shall hold
in trust money or Government Securities deposited with it pursuant to this
Article VIII. It shall apply the deposited money and the money from
Government Securities through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Series B Notes.
SECTION 8.04. Repayment to Note Issuers. The Trustee and the
Paying Agent shall promptly turn over to Iridium upon request any excess money
or securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and
the Paying Agent shall pay to Iridium upon request any money held by them for
the payment of principal or interest that remains unclaimed for two years,
and, thereafter, Holders entitled to the money must look to the Issuers for
payment as general creditors.
SECTION 8.05. Indemnity for Government Securities. The Note
Issuers shall pay and shall indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against deposited Government Securities or
the principal and interest received on such Government Securities other than
any tax, fee or other charge which by law is for the account of the Holders.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or Government Securities in accordance with this
Article VIII by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Note Issuers' obligations under
this Indenture and the Series B Notes shall be revived and reinstated as
though no deposit had occurred pursuant to this Article VIII until such time
as the Trustee or Paying Agent is permitted to apply all such money or
Government Securities in accordance with this Article VIII; provided, however,
that, if the Note Issuers have made any payment of interest on or principal of
any Series B Notes because of the reinstatement of its obligations, the Note
Issuers shall be subrogated to the rights of the Holders of such Series B
Notes to receive such payment from the money or Government Securities held by
the Trustee or Paying Agent.
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ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders. The Note Issuers, the
Guarantor Subsidiaries and the Trustee may amend this Indenture or the
Securities without notice to or consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Section 4.15 or Article V;
(3) to provide for uncertificated Securities in addition to or in
place of Series B Notes; provided, however, that the uncertificated
Series B Notes are issued in registered form for purposes of Section
163(f) of the Code or in a manner such that the uncertificated Series B
Notes are described in Section 163(f)(2)(B) of the Code;
(4) to add further Subsidiary Guaranties with respect to the Series
B Notes or to release Guarantor Subsidiaries when permitted by the terms
hereof, or to secure the Series B Notes;
(5) to add to the covenants of the Note Issuers for the benefit of
the Holders or to surrender any right or power herein conferred upon the
Note Issuers;
(6) to comply with any requirements of the SEC in connection with
qualifying this Indenture under the TIA;
(7) to make any change that does not adversely affect the rights of
any Holder; and
(8) to provide for the issuance and authorization of the Exchange
Series B Notes or Private Exchange Series B Notes.
After an amendment under this Section becomes effective, the Note
Issuers shall mail to Holders a notice briefly describing such amendment. The
failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section.
SECTION 9.02. With Consent of Holders. The Note Issuers, the
Guarantor Subsidiaries and the Trustee may amend this Indenture or the Series
B Notes without notice to any Holder but with the written consent of the
Holders of at least a majority in principal amount of the Series B Notes. The
Holders of at least a majority in principal amount of the Series B
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Notes may waive compliance by the Note Issuers or any Guarantor Subsidiary
with any provision or covenant of this Indenture or the Series B Notes.
However, without the consent of each Holder of an outstanding Series B Note,
an amendment or waiver may not:
(1) reduce the amount of Series B Notes whose Holders must consent
to an amendment or waiver;
(2) reduce the rate of or extend the time for payment of interest or
Liquidated Damages on any such Series B Note;
(3) reduce the principal of or extend the Stated Maturity of any
such Series B Note;
(4) reduce the premium payable upon the redemption of any Series B
Note or change the time at which any Series B Note may be redeemed in
accordance with Article III;
(5) make any Series B Note payable in money other than that stated
in such Series B Note;
(6) impair the right of any Holder to receive payment of principal
of and premium, Liquidated Damages and interest on such Holder's Series B
Notes on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such Holder's Series B
Notes.
(7) modify the Subsidiary Guaranties (except as contemplated by the
terms thereof or of this Indenture) in any manner adverse to the Holders;
or
(8) make any change in Section 6.04, Section 6.07 or the third
sentence of this Section.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent approves the substance thereof.
After an amendment under this Section becomes effective, the Note
Issuers shall mail to Holders a notice briefly describing such amendment. The
failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section.
SECTION 9.03. Compliance with Trust Indenture Act. Every amendment
to this Indenture or the Series B Notes shall comply with the TIA as then in
effect.
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SECTION 9.04. Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Series B Note shall bind
the Holder and every subsequent Holder of that Series B Note or portion of the
Series B Note that evidences the same debt as the consenting Holder's Series B
Note, even if notation of the consent or waiver is not made on the Series B
Note. However, any such Holder or subsequent Holder may revoke the consent or
waiver as to such Holder's Series B Note or portion of the Series B Note if
the Trustee receives the notice of revocation before the date the amendment or
waiver becomes effective. After an amendment or waiver becomes effective, it
shall bind every Holder. An amendment or waiver becomes effective once the
consents from the Holders of the requisite percentage in principal amount of
outstanding Series B Notes are received by the Notes Issuers or the Trustee.
The Note Issuers may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to give their consent
or take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding
the immediately preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only those Persons, shall
be entitled to give such consent or to revoke any consent previously given or
to take any such action, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 120 days after such record date.
SECTION 9.05. Notation on or Exchange of Series B Notes. If an
amendment changes the terms of a Series B Note, the Trustee may require the
Holder of the Series B Note to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Series B Note regarding the changed terms
and return it to the Holder. Alternatively, if the Note Issuers or the
Trustee so determines, the Note Issuers in exchange for the Series B Note
shall issue and the Trustee shall authenticate a new Series B Note that
reflects the changed terms. Failure to make the appropriate notation or to
issue a new Series B Note shall not affect the validity of such amendment.
SECTION 9.06. Trustee To Sign Amendments. The Trustee shall sign
any amendment authorized pursuant to this Article IX if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing any amendment
the Trustee shall be entitled to receive indemnity reasonably satisfactory to
it and to receive, and (subject to Section 7.01) shall be fully protected in
relying upon, an Officers' Certificate and an Opinion of Counsel stating that
such amendment is authorized or permitted by this Indenture and complies with
the provisions hereof (including Section 9.03).
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ARTICLE X
Subsidiary Guarantees
SECTION 10.01. Subsidiary Guarantees. Each Guarantor Subsidiary
hereby jointly and severally unconditionally and irrevocably guarantees, as a
primary obligor and not merely as a surety, to each Holder and to the Trustee
and its successors and assigns (a) the full and punctual payment of principal
of and interest and Liquidated Damages on the Series B Notes when due, whether
at maturity, by acceleration, by redemption or otherwise, and all other
monetary obligations of the Note Issuers under this Indenture (including
obligations to the Trustee) and the Series B Notes and (b) the full and
punctual performance within applicable grace periods of all other obligations
of the Issuers whether for expenses, indemnification or otherwise under this
Indenture and the Series B Notes (all the foregoing being hereinafter
collectively called the "Obligations"). Each Guarantor Subsidiary further
agrees that the Obligations may be extended or renewed, in whole or in part,
without notice or further assent from each such Guarantor Subsidiary, and that
each such Guarantor Subsidiary shall remain bound under this Article X
notwithstanding any extension or renewal of any Obligation.
Each Guarantor Subsidiary waives presentation to, demand of, payment
from and protest to the Note Issuers of any of the Obligations and also waives
notice of protest for nonpayment. Each Guarantor Subsidiary waives notice of
any default under the Series B Notes or the Obligations. The obligations of
each Guarantor Subsidiary hereunder shall not be affected by (a) the failure
of any Holder or the Trustee to assert any claim or demand or to enforce any
right or remedy against the Note Issuers or any other Person under this
Indenture, the Series B Notes or any other agreement or otherwise; (b) any
extension or renewal of any thereof; (c) any rescission, waiver, amendment or
modification of any of the terms or provisions of this Indenture, the Series B
Notes or any other agreement; (d) the release of any security held by any
Holder or the Trustee for the Obligations or any of them; (e) the failure of
any Holder or Trustee to exercise any right or remedy against any other
guarantor of the Obligations; or (f) any change in the ownership of such
Guarantor Subsidiary, except as provided in Section 10.02(b).
Each Guarantor Subsidiary further agrees that its Subsidiary
Guaranty herein constitutes a guarantee of payment, performance and compliance
when due (and not a guarantee of collection) and waives any right to require
that any resort be had by any Holder or the Trustee to any security held for
payment of the Obligations.
The obligations of each Guarantor Subsidiary hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason
(except based on actual payment or performance or any release or termination
contemplated by this Indenture), including any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to any defense
of setoff, counterclaim, recoupment or termination whatsoever or by reason of
the invalidity, illegality or unenforceability of the Obligations or
otherwise. Without limiting the
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generality of the foregoing, the obligations of each Guarantor Subsidiary
herein shall not be discharged or impaired or otherwise affected by the
failure of any Holder or the Trustee to assert any claim or demand or to
enforce any remedy under this Indenture, the Series B Notes or any other
agreement, by any waiver or modification of any thereof, by any default,
failure or delay, willful or otherwise, in the performance of the Obligations,
or by any other act or thing or omission or delay to do any other act or thing
which may or might in any manner or to any extent vary the risk of, or would
otherwise operate as a discharge of, a surety as a matter of law or equity.
Each Guarantor Subsidiary further agrees that its Subsidiary
Guaranty herein shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of principal of or
interest on any Obligation is rescinded or must otherwise be restored by any
Holder or the Trustee upon the bankruptcy or reorganization of the Note
Issuers or otherwise.
In furtherance of the foregoing and not in limitation of any other
right which any Holder or the Trustee has at law or in equity against any
Guarantor Subsidiary by virtue hereof, upon the failure of the Note Issuers to
pay the principal of or interest on any Obligation when and as the same shall
become due, whether at maturity, by acceleration, by redemption or otherwise,
or to perform or comply with any other Obligation, each Guarantor Subsidiary
hereby promises to and shall, upon receipt of written demand by the Trustee,
forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an
amount equal to the sum of (i) the unpaid principal amount of such
Obligations, (ii) accrued and unpaid interest on such Obligations (but only to
the extent not prohibited by law) and (iii) all other monetary Obligations of
the Note Issuers to the Holders and the Trustee.
Each Guarantor Subsidiary agrees that it shall not be entitled to
any right of subrogation in relation to the Holders in respect of any
Obligations guaranteed hereby until payment in full of all Obligations. Each
Guarantor Subsidiary further agrees that, as between it, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
Obligations guaranteed hereby may be accelerated as provided in Article VI for
the purposes of any Subsidiary Guaranty herein, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
Obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such Obligations as provided in Article VI, such Obligations
(whether or not due and payable) shall forthwith become due and payable by
such Guarantor Subsidiary for the purposes of this Section.
Each Guarantor Subsidiary also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees and expenses) incurred by the
Trustee or any Holder in enforcing any rights under this Section.
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SECTION 10.02. Limitation on Liability. (a) Any term or provision
of this Indenture to the contrary notwithstanding, the maximum, aggregate
amount of the obligations guaranteed hereunder by any Guarantor Subsidiary
shall not exceed the maximum amount that can be hereby guaranteed without
rendering this Indenture, as it relates to any Guarantor Subsidiary, voidable
under applicable law relating to fraudulent conveyance or fraudulent transfer
or similar laws affecting the rights of creditors generally.
(b) This Subsidiary Guaranty as to any Guarantor Subsidiary shall
terminate and be of no further force or effect and such Guarantor Subsidiary
shall be released from its obligations in respect of this Subsidiary Guaranty
upon (i) the sale or other transfer (x) by such Guarantor Subsidiary of all or
substantially all of its assets or (y) of all of the Capital Stock of such
Guarantor Subsidiary, to a Person other than Iridium or a Subsidiary of
Iridium; provided, however, that such sale or transfer shall be deemed to
constitute an Asset Disposition and the Note Issuers shall comply with its
obligations under Section 4.06; (ii) the designation by Iridium of such
Guarantor Subsidiary as an Unrestricted Subsidiary in accordance with this
Indenture; (iii) reorganization of such Guarantor Subsidiary as a Foreign
Subsidiary; or (iv) upon satisfaction of the requirements of Section 5.01(d)
or 8.01(b), as the case may be, that would permit such a release.
SECTION 10.03. Successors and Assigns. This Article X shall be
binding upon each Guarantor Subsidiary and its successors and assigns and
shall enure to the benefit of the successors and assigns of the Trustee and
the Holders and, in the event of any transfer or assignment of rights by any
Holder or the Trustee, the rights and privileges conferred upon that party in
this Indenture and in the Series B Notes shall automatically extend to and be
vested in such transferee or assignee, all subject to the terms and conditions
of this Indenture.
SECTION 10.04. No Waiver. Neither a failure nor a delay on the
part of either the Trustee or the Holders in exercising any right, power or
privilege under this Article X shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of
any right, power or privilege. The rights, remedies and benefits of the
Trustee and the Holders herein expressly specified are cumulative and not
exclusive of any other rights, remedies or benefits which either may have
under this Article X at law, in equity, by statute or otherwise.
SECTION 10.05. Modification. No modification, amendment or waiver
of any provision of this Article X, nor the consent to any departure by any
Guarantor Subsidiary therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Trustee, and then such waiver or
consent shall be effective only in the specific instance and for the purpose
for which given. No notice to or demand on any Guarantor Subsidiary in any
case shall entitle such Guarantor Subsidiary to any other or further notice or
demand in the same, similar or other circumstances.
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SECTION 10.06. Initial Guarantors; Execution of Supplemental
Indenture for Future Guarantor Subsidiaries. Each Restricted Subsidiary which
is required to become, or is designated by Iridium to become, a Guarantor
Subsidiary pursuant to Section 4.15 shall promptly execute and deliver to the
Trustee a supplemental indenture in the form of Exhibit D hereto pursuant to
which such Subsidiary shall become a Guarantor Subsidiary under this Article X
and shall guarantee the Obligations. Concurrently with the execution and
delivery of such supplemental indenture, the Note Issuers shall deliver to the
Trustee an Opinion of Counsel and an Officers' Certificate to the effect that
such supplemental indenture has been duly authorized, executed and delivered
by such Subsidiary and that, subject to the application of bankruptcy,
insolvency, moratorium, fraudulent conveyance or transfer and other similar
laws relating to creditors' rights generally and to the principles of equity,
whether considered in a proceeding at law or in equity, the Subsidiary
Guaranty of such Guarantor Subsidiary is a legal, valid and binding obligation
of such Guarantor Subsidiary, enforceable against such Guarantor Subsidiary in
accordance with its terms.
ARTICLE XI
Miscellaneous
SECTION 11.01. Trust Indenture Act Controls. If any provision of
this Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 11.02. Notices. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail or by national
overnight courier service addressed as follows:
if to any of the Issuers:
c/o Iridium LLC
0000 Xxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
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if to the Trustee:
State Street Bank and Trust Company
Corporate Services Division
0xx Xxxxx
0 Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Mr. Xxxxx Xxxxxx
Facsimile: (000) 000-0000
The Issuers or the Trustee by notice to the others may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed to
the Holder at such Holder's address as it appears on the registration books of
the Registrar and shall be sufficiently given if so mailed by first class mail
within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders. If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it, except that any such notice
to the Trustee must be received by a Trust Officer to be duly given.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice.
SECTION 11.03. Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other Holders with
respect to their rights under this Indenture or the Series B Notes. The
Issuers, the Trustee, the Registrar and anyone else shall have the protection
of TIA Section 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuers to the Trustee to take or
refrain from taking any action under this Indenture, the Note Issuers shall,
if requested by the Trustee, furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee and complying with Section 11.05 stating
that, in the opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with; and
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(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee and complying with Section 11.05 stating
that, in the opinion of such counsel, all such conditions precedent have
been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 11.06. When Series B Notes Disregarded. In determining
whether the Holders of the required principal amount of Series B Notes have
concurred in any direction, waiver or consent, Series B Notes owned by the
Issuers or by any Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Issuers shall be
disregarded and deemed not to be outstanding, except that, for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Series B Notes which the Trustee knows are
so owned shall be so disregarded. Also, subject to the foregoing, only Series
B Notes outstanding at the time shall be considered in any such determination.
SECTION 11.07. Rules by Trustee Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 11.08. Legal Holidays. If a payment date is not a Business
Day, payment shall be made on the next succeeding day that is a Business Day,
and no interest shall accrue for the intervening period. If a regular record
date is not a Business Day, the record date shall not be affected.
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SECTION 11.09. Governing Law. THIS INDENTURE AND THE SERIES B
NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 11.10. No Recourse Against Others. A director, officer,
employee, incorporator or member or stockholder, as such, of Iridium shall not
have any liability for any obligations of any Issuer under the Series B Notes
or this Indenture or for any claim based on, in respect of or by reason of
such obligations or their creation. By accepting a Series B Note, each Holder
shall waive and release all such liability. The waiver and release shall be
part of the consideration for the issue of the Series B Notes. Such waiver
will not constitute a waiver of liabilities under the federal securities laws
if it is the view of the SEC that such a waiver would be against public
policy.
SECTION 11.11. Successors. All agreements of the Issuers in this
Indenture and the Series B Notes shall bind their successors. All agreements
of the Trustee in this Indenture shall bind its successors.
SECTION 11.12. Multiple Originals. The parties may sign any number
of copies of this Indenture. Each signed copy shall be an original, but all
of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
SECTION 11.13. Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any
of the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed as of the date first written above.
IRIDIUM LLC
by /s/ XXX XXXXX
-------------------------
Name: Xxx Xxxxx
Title: Vice President-Treasurer and
acting Chief Financial Officer
IRIDIUM CAPITAL CORPORATION
by /s/ XXX XXXXX
-------------------------
Name: Xxx Xxxxx
Title: Chief Financial Officer
IRIDIUM ROAMING LLC
by /s/ XXX XXXXX
-------------------------
Name: Xxx Xxxxx
Title: acting chief financial officer
IRIDIUM IP LLC
by /s/ XXX XXXXX
-------------------------
Name: Xxx Xxxxx
Title: acting chief financial officer
STATE STREET BANK AND TRUST
COMPANY, as Trustee
by /s/ XXXXX XXXXXX
-------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Secretary
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EXHIBIT A
FORM OF FACE OF INITIAL SERIES B NOTE
[Global Series B Note Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUERS
OR THEIR AGENTS FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.(1)
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO HEREIN.(1)
[Restricted Series B Note Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUERS OR ANY
AFFILIATE OF THE ISSUERS WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY) EXCEPT (A) TO THE ISSUERS, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFSHORE TRANSACTIONS MEETING THE REQUIREMENTS OF
RULE 903 OR RULE 904 UNDER THE SECURITIES ACT, (E) TO AN "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT
THAT IS AN INSTITUTIONAL INVESTOR ACQUIRING THE SECURITY IN A TRANSACTION EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (IF AVAILABLE) OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, AND, IN EACH CASE (A) THROUGH (F), IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES OF
--------------------
(1) These paragraphs should only be added if the Security is issued in
global form.
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THE UNITED STATES AND OTHER JURISDICTIONS AND SUBJECT TO THE ISSUERS' AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE
(D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN THE CASE OF ANY OF
THE FOREGOING CLAUSES (A) THROUGH (F), A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE ISSUERS AND THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
IRIDIUM LLC
IRIDIUM CAPITAL CORPORATION
14% SENIOR NOTE DUE 2005, SERIES B
No. CUSIP No. [ ]
$[ ]
IRIDIUM LLC, a Delaware limited liability corporation and IRIDIUM
CAPITAL CORPORATION, a Delaware corporation, as joint and several obligors,
promise to pay to [ ], or registered assigns, the principal sum of $[__________]
on July 15, 2005.
Interest Payment Dates: January 15 and July 15
Record Dates: January 1 and July 1
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Additional provisions of this Series B Note are set forth on the
other side of this Series B Note.
Dated: ________, ____
IRIDIUM LLC
By:
----------------------------------
Name:
Title:
IRIDIUM CAPITAL CORPORATION
By:
----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
STATE STREET BANK AND TRUST COMPANY
as Trustee, certifies
that this is one of
the Series B Notes referred
to in the Indenture,
By:
-------------------------
Authorized Signatory
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Guaranteed pursuant to the Indenture:
IRIDIUM ROAMING LLC
By:
----------------------------------
Name:
Title:
IRIDIUM IP LLC
By:
----------------------------------
Name:
Title:
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FORM OF REVERSE SIDE OF INITIAL SERIES B NOTE
14% Senior Note due 2005, Series B
1. Interest.
IRIDIUM LLC, a Delaware limited liability company ("Iridium") and
IRIDIUM CAPITAL CORPORATION, a Delaware corporation ("Capital" and together
with Iridium, the "Note Issuers"), as joint and several obligors, and IRIDIUM
ROAMING LLC and IRIDIUM IP LLC (together, the "Guarantor Subsidiaries", and
together with the Note Issuers, the "Issuers"), promise to pay interest on the
principal amount of the Series B Notes at the rate per annum shown above.
Iridium will pay interest in cash semi-annually in arrears on January 15 and
July 15 of each year (each an "Interest Payment Date"), commencing January 15,
1998. Interest payable on the Series B Notes shall be computed on the basis of
a 360-day year comprised of 30-day months.
2. Method of Payment.
The Note Issuers shall pay interest on the Series B Notes (except
defaulted interest) to the persons who are the registered holders at the close
of business on the Record Date immediately preceding the interest payment date
even if the Series B Notes are cancelled on registration of transfer or
registration of exchange after such Record Date. Holders must surrender the
Series B Notes to the Trustee to collect principal payments. The Note Issuers
shall pay principal and interest in money of the United States that at the time
of payment is legal tender for payment of public and private debts ("U.S. Legal
Tender"). However, the Note Issuers may pay principal and interest by wire
transfer of Federal funds, or interest by check payable in such U.S. Legal
Tender. The Note Issuers may deliver any such interest payment to the Trustee
or to a holder at the holder's registered address.
3. Paying Agent and Registrar.
Initially, STATE STREET BANK AND TRUST COMPANY, a Massachusetts
banking corporation ("Trustee"), will act as Paying Agent and Registrar.
Iridium may appoint and change any Paying Agent, Registrar or co-registrar
without notice to the Holders. Iridium, Capital or any of Iridium's
domestically incorporated Wholly-Owned Subsidiaries may act as Paying Agent,
Registrar or co-registrar.
4. Indenture and Guarantees.
The Note Issuers issued the Series B Notes under an
Indenture dated as of July 16, 1997 (the "Indenture"), among the Note Issuers,
as joint and several obligors, the Guarantor Subsidiaries (as defined in the
Indenture) and the Trustee. Capitalized terms used herein are used as defined in
the Indenture unless otherwise defined herein. The terms of the Series B Notes
include those stated in the Indenture and those made part of such Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb)
(the "TIA"), as in effect on the date of the Indenture until such time as the
Indenture is qualified under the TIA, and thereafter as in effect on the date
on which the Indenture is qualified under the TIA. Notwithstanding anything to
the contrary herein, the Series B Notes are subject to all such terms, and
holders of Series B Notes are referred to the Indenture and the TIA for a
statement of them. The Series B Notes are obligations of the Note Issuers
limited in aggregate principal amount to $500,000,000. Payment on each Series B
Note is guaranteed on a senior basis, jointly and severally, by the Guarantor
Subsidiaries pursuant to Article X of the Indenture.
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5. Optional Redemption.
Except as described in the next succeeding paragraph, the Series B
Notes will not be redeemable at the option of the Note Issuers prior to July
15, 2002. On and after such date, the Series B Notes will be redeemable, at
either Note Issuer's option, in whole or in part, at any time upon not less
than 30 nor more than 60 days' prior notice mailed by first-class mail to each
Holder's registered address, at the following redemption prices (expressed in
percentages of principal amount), plus accrued and unpaid interest and
Liquidated Damages, if any, to the redemption date (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date that is on or prior to the date of redemption),
if redeemed during the 12-month period commencing on July 15 of the years set
forth below:
REDEMPTION
YEAR PRICE
---- -----
2002 107.500%
2003 103.750%
2004 and thereafter 100.000%
In addition, at any time and from time to time on or prior to July
15, 2000, either Note Issuer may redeem in the aggregate up to 33-1/3% of the
original aggregate principal amount of the Series B Notes with the cash
proceeds to Iridium of one or more Equity Offerings, at a redemption price
(expressed as a percentage of principal amount thereof) of 115% plus accrued
and unpaid interest and Liquidated Damages, if any, to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date that is on or prior
to the date of redemption); provided, however, that at least 66-2/3% of the
original aggregate principal amount of the Series B Notes must remain
outstanding after each such redemption.
6. Notice of Redemption.
In the case of any partial redemption, selection of the Series B
Notes for redemption will be made by the Trustee on a pro rata basis, by lot or
by such other method as the Trustee in its sole discretion deems to be fair and
appropriate, although no Series B Note of $1,000 in original principal amount
or less will be redeemed in part. If any Series B Note is to be redeemed in
part only, the notice of redemption relating to such Series B Note will state
the portion of the principal amount thereof to be redeemed. A new Series B
Note in principal amount equal to the unredeemed portion thereof will be issued
in the name of the Holder thereof upon cancellation of the original Series B
Note.
7. Subsidiary Guaranties.
The Initial Guarantors will provide Subsidiary Guaranties on the
Issue Date. In the event that, after the Issue Date, Iridium acquires or
creates a Subsidiary other than a Foreign Subsidiary, Iridium will cause such
Subsidiary (unless such Subsidiary is an Unrestricted Subsidiary) to, jointly
and severally, as primary obligors and not merely as sureties, irrevocably
Guarantee on a senior unsecured basis the performance and punctual payment when
due, whether at Stated Maturity, by acceleration or otherwise, of all
obligations of the Note Issuers under the Indenture and the Series B Notes
issued pursuant thereto. Iridium may cause any Foreign Subsidiary to execute
and deliver a Subsidiary Guaranty in accordance with the provisions of the
Indenture, in which case such Foreign Subsidiary will be a "Guarantor
Subsidiary" for purposes of the Indenture. Each Subsidiary Guaranty will be
limited in amount to an amount not to exceed the maximum amount that can be
Guaranteed by the applicable Guarantor Subsidiary without rendering such
Subsidiary Guaranty voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.
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A Subsidiary Guaranty will be released upon (i) the sale of all of
the Capital Stock, or all or substantially all of the assets, of the applicable
Guarantor Subsidiary (in each case to an entity other than to Iridium or a
Subsidiary of Iridium), (ii) the designation by Iridium of the applicable
Guarantor Subsidiary as an Unrestricted Subsidiary, in each case in compliance
with the Indenture, (iii) the reorganization of the applicable Guarantor
Subsidiary as a Foreign Subsidiary or (iv) upon satisfaction of the
requirements of Section 5.01(d) (merger) or 8.01(b) (defeasance) of the
Indenture.
8. Change of Control Offer.
Upon the occurrence of a Change of Control, each Holder will have the
right to require the Note Issuers to repurchase all or any part of such
Holder's Series B Notes at a purchase price in cash equal to 101% of the
principal amount of the Series B Notes, plus accrued and unpaid interest and
Liquidated Damages, if any, to the date of purchase.
9. Denominations; Transfer; Exchange
The Series B Notes are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer
or exchange Series B Notes in accordance with the Indenture. Upon any transfer
or exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay
any taxes required by law or permitted by the Indenture. The Registrar need
not register the transfer of or exchange any Series B Notes selected for
redemption (except, in the case of a Series B Note to be redeemed in part, the
portion of the Series B Note not to be redeemed) or to transfer or exchange any
Series B Notes for a period of 15 days prior to a selection of Series B Notes
to be redeemed or 15 days before an interest payment date.
10. Persons Deemed Owners
The registered Holder of this Series B Note may be treated as the
owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall, subject to the requirements
of applicable escheat laws, pay the money back to the Note Issuers at its
written request unless an abandoned property law designates another Person.
After any such payment, Holders entitled to the money must look only to the
Note Issuers and not to the Trustee for payment.
12. Legal Defeasance and Covenant Defeasance.
The Note Issuers at any time may terminate all their obligations
under the Series B Notes and the Indenture upon satisfaction of certain
conditions specified in the Indenture, except for certain obligations,
including those respecting the defeasance trust and obligations to register the
transfer or exchange of the Series B Notes, to replace mutilated, destroyed,
lost or stolen Series B Notes and to maintain a registrar and paying agent in
respect of the Series B Notes. The Note Issuers at any time may terminate
their obligations under certain restrictive covenants. If the Note Issuers
exercise their legal defeasance option or their covenant defeasance option,
each Guarantor Subsidiary will be released from all of its obligations with
respect to its Subsidiary Guaranty (and no Restricted Subsidiary (other than
Capital) will thereafter be obligated to execute, deliver, or endorse any
Series B Note; nor shall any such execution, delivery or endorsement thereafter
bind any Restricted Subsidiary).
13. Amendment and Waiver.
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Subject to certain exceptions, the Indenture may be amended with the
consent of the Holders of a majority in principal amount of the Series B Notes
then outstanding and any past default and its consequences or compliance with
any provisions may be waived with the consent of the Holders of a majority in
principal amount of the Series B Notes then outstanding. Without the consent of
any Holder, the Note Issuers and the Trustee may amend the Indenture to cure any
ambiguity, omission, defect or inconsistency, to provide for the assumption by a
successor corporation of the obligations of either Note Issuer under the
Indenture, to provide for uncertificated Series B Notes in addition to or in
place of certificated Series B Notes, to add further Subsidiary Guaranties with
respect to such Series B Notes, to release Guarantor Subsidiaries when permitted
by such Indenture, to secure such Series B Notes, to add to the covenants of the
Note Issuers for the benefit of the Holders of such Series B Notes or to
surrender any right or power conferred upon the Note Issuers, to make any change
that does not adversely affect the rights of any Holder of such Series B Notes
or to comply with any requirement of the SEC in connection with the
qualification of such Indenture under the TIA.
14. Restrictive Covenants.
The Indenture contains certain covenants that, among other things,
limit the ability of Iridium and its Restricted Subsidiaries to make restricted
payments, to incur indebtedness, to create liens, to issue capital stock of
subsidiaries, to sell assets, to permit restrictions on dividends and other
payments by subsidiaries to Iridium, to consolidate, merge or sell all or
substantially all of its assets, to engage in transactions with affiliates, to
maintain insurance or to engage in certain businesses. The limitations are
subject to a number of important qualifications and exceptions. The Note
Issuers must report to the Trustee on compliance with such limitations.
15. Defaults and Remedies.
If an Event of Default under the Indenture occurs and is continuing,
the Trustee or the Holders of at least 25% in principal amount of the
outstanding Series B Notes by notice to the Note Issuers and the Trustee in
writing may declare the principal of and accrued but unpaid interest on and
Liquidated Damages, if any, on all the Series B Notes to be due and payable. If
an Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of either Note Issuer occurs and is continuing, the principal of
and Liquidated Damages, if any, and interest on all the Series B Notes will
become immediately due and payable without any declaration or other act on the
part of the Trustee or any Holders. Holders of Series B Notes may not enforce
the Indenture or the Series B Notes except as provided in the Indenture. Under
certain circumstances, the Holders of a majority in principal amount of the
Series B Notes then outstanding may rescind any such acceleration with respect
to the Series B Notes and its consequences.
16. No Recourse Against Others.
No director, officer, employee, incorporator or member of Iridium, as
such, will have any liability for any obligations of the Note Issuers or any
Guarantor Subsidiary under the Series B Notes or the Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each holder of Series B Notes by accepting a Series B Note waives and releases
all such liability (such waiver will not constitute a waiver of liabilities
under the Federal securities laws, however, if it is the view of the SEC that
such a waiver would be against public policy).
17. Registration Rights.
Pursuant to the Exchange and Registration Rights Agreement, the
Issuers will be obligated upon the occurrence of certain events to consummate
an exchange offer pursuant to which the holders of Series B Notes shall,
subject to certain limitations, have the right to exchange Initial Series B
Notes for the Exchange Series B Notes or Private Exchange Series B Notes, which
will be registered under the Securities Act, in like principal amount and
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having terms identical in all material respects as the Series B Notes. The
Holders shall be entitled to receive certain liquidated damages in the event
such exchange offer is not consummated and upon certain other conditions, all
pursuant to and in accordance with the terms of the Exchange and Registration
Rights Agreement.
18. Trustee Dealings with the Note Issuers.
Subject to certain limitations imposed by the Act, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Series B Notes and may otherwise deal with and collect obligations
owed to it by the Note Issuers or its Affiliates and may otherwise deal with
the Note Issuers or its Affiliates with the same rights it would have if it
were not Trustee.
19. Governing Law.
THE SERIES B NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
20. Authentication.
This Series B Note shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Series B Note.
21. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
22. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Note Issuers have caused CUSIP numbers
to be printed on the Series B Notes and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Series B Notes or as contained in any notice of redemption and reliance may
be placed only on the other identification numbers placed thereon.
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THE NOTE ISSUERS WILL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND
WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH HAS IN IT THE TEXT
OF THIS SERIES B NOTE IN LARGER TYPE. REQUESTS MAY BE MADE TO:
IRIDIUM LLC
0000 XXX XXXXXX, X.X.
XXXXXXXXXX, XX 00000
ATTENTION: GENERAL COUNSEL
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Series B Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to
transfer this Series B Note on the books of the Note Issuers.
The agent may substitute another to act for him or her.
-----------------------------------------------------------------
Date: Your Signature:
-------------------- ---------------------
Signature Guarantee:
---------------------------------------------
(Signature must be guaranteed by a participant in a
recognized signature guarantee medallion program)
-----------------------------------------------------------------
Sign exactly as your name appears on the other side of this
Security.
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER
RESTRICTED SECURITIES
This certificate relates to $__________ principal amount of Series B Notes held
in (check applicable space) _________________ book-entry or ________________
definitive form by the undersigned.
The undersigned (check one box below):
[ ] has requested the Trustee by written order to deliver in
exchange for its beneficial interest in the Global Series B Note held by
the Depository a Series B Note or Series B Notes in definitive, registered
form of authorized denominations and an aggregate principal amount equal
to its beneficial interest in such Global Series B Note (or the portion
thereof indicated above), subject to the restrictions in Article II of the
Indenture;
[ ] has requested the Trustee by written order to exchange or
register the transfer of a Series B Note or Series B Notes.
In connection with any transfer of any of the Series B Notes evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act after the later of the date of original issuance
of such Series B Notes and the last date, if any, on which such Series B Notes
were owned by the Note Issuers or any Affiliate of the Note Issuers, the
undersigned confirms that such principal amount of Series B Notes are being
transferred in accordance with its terms:
CHECK ONE BOX BELOW:
(1) [ ] to the Issuers; or
(2) [ ] pursuant to an effective registration statement under the
Securities Act of 1933; or
(3) [ ] inside the United States to a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act of 1933) that
purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that such transfer
is being made in reliance on Rule 144A, in each case pursuant to
and in compliance with Rule 144A under the Securities Act of
1933; or
(4) [ ] outside the United States in an offshore transaction meeting the
requirements of Rule 903 or Rule 904 under the Securities Act of
1933; or
(5) [ ] inside the United States to an "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities
Act that is an institutional investor acquiring in a transaction
exempt from the registration requirements of the Securities Act;
or
(6) [ ] pursuant to another available exemption from the registration
requirements of the Securities Act of 1933.
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Unless one of the boxes is checked, the Issuers or the Trustee will refuse to
register any of the Series B Notes evidenced by this certificate in the name of
any person other than the registered holder thereof; provided, however, that if
box (4), (5) or (6) is checked, the Issuers or the Trustee may require, prior to
registering any such transfer of the Series B Notes, such legal opinions,
certifications and/or other information satisfactory to each of them to confirm
that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act
of 1933.
-------------------------
Signature
Signature Guarantee:
-------------------------- -------------------------
Signature must be guaranteed Signature
-----------------------------------------------
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Series B Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Note Issuers as the undersigned has requested pursuant to Rule
144A or has determined not to request such information and that it is aware
that the transferor is relying upon the undersigned's foregoing representations
in order to claim the exemption from registration provided by Rule 144A.
Dated:
---------------- -------------------------------
Signature
NOTICE: To be executed by
an executive officer
This certificate is in addition to any other certificates that may be required
under the Indenture.
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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SERIES B NOTE(1)
The following increases or decreases in this Global Series B Note
have been made:
Amount of decrease Amount of increase Principal amount Signature of
in Principal in Principal of this Global authorized officer
Date of Amount of this Amount of this Series B Note following such of Trustee or
Exchange Global Series B Note Global Series B Note decrease or increase Series B Notes Custodian
-------- -------------------- -------------------- -------------------- ------------------------
--------------------
(1) This schedule should only be added if the Security is issued in
global form.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Series B Note purchased by the Note
Issuers pursuant to Section 4.06 or 4.08 of the Indenture, check the box:
[ ]
Date: Your Signature:
-------------------- --------------------
(Sign exactly as your name appears
on the other side of the
Security)
Signature Guarantee:
--------------------------------------------
(Signature must be guaranteed by a participant
in a recognized signature guarantee medallion
program)
106
EXHIBIT B
FORM OF FACE OF EXCHANGE SERIES B NOTE
OR PRIVATE EXCHANGE SERIES B NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUERS
OR THEIR AGENTS FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO HEREIN.
IRIDIUM LLC
IRIDIUM CAPITAL CORPORATION
14% SENIOR NOTE DUE 2005, SERIES B
No. CUSIP No. [ ]
$[ ]
IRIDIUM LLC, a Delaware limited liability corporation and IRIDIUM
CAPITAL CORPORATION, a Delaware corporation, as joint and several obligors,
promise to pay to [ ], or registered assigns, the principal sum of
$[ ] on July 15, 2005.
Interest Payment Dates: January 15 and July 15
Record Dates: January 1 and July 1
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2
Additional provisions of this Series B Note are set forth on the
other side of this Series B Note.
Dated:
IRIDIUM LLC
By:
--------------------------------------
Name:
Title:
IRIDIUM CAPITAL CORPORATION
By:
--------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
STATE STREET BANK AND
TRUST COMPANY
as Trustee, certifies
that this is one of
the Series B Notes referred
to in the Indenture,
By:
------------------------------------
Authorized Signatory
108
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FORM OF REVERSE SIDE OF EXCHANGE SERIES B NOTE
14% Senior Note due 2005, Series B
1. Interest.
IRIDIUM LLC, a Delaware limited liability company ("Iridium") and
IRIDIUM CAPITAL CORPORATION, a Delaware corporation ("Capital" and together
with Iridium, the "Note Issuers"), as joint and several obligors, and IRIDIUM
ROAMING LLC and IRIDIUM IP LLC (together, the "Guarantor Subsidiaries", and
together with the Note Issuers, the "Issuers"), promise to pay interest on the
principal amount of the Series B Notes at the rate per annum shown above.
Iridium will pay interest in cash semi-annually in arrears on January 15 and
July 15 of each year (each an "Interest Payment Date"), commencing January 15,
1998. Interest payable on the Series B Notes shall be computed on the basis of
a 360-day year comprised of 30-day months.
2. Method of Payment.
The Note Issuers shall pay interest on the Series B Notes (except
defaulted interest) to the persons who are the registered holders at the close
of business on the Record Date immediately preceding the interest payment date
even if the Series B Notes are cancelled on registration of transfer or
registration of exchange after such Record Date. Holders must surrender the
Series B Notes to the Trustee to collect principal payments. The Note Issuers
shall pay principal and interest in money of the United States that at the time
of payment is legal tender for payment of public and private debts ("U.S. Legal
Tender"). However, the Note Issuers may pay principal and interest by wire
transfer of Federal funds, or interest by check payable in such U.S. Legal
Tender. The Note Issuers may deliver any such interest payment to the Trustee
or to a holder at the holder's registered address.
3. Paying Agent and Registrar.
Initially, STATE STREET BANK AND TRUST COMPANY, a Massachusetts
banking corporation ("Trustee"), will act as Paying Agent and Registrar.
Iridium may appoint and change any Paying Agent, Registrar or co-registrar
without notice to the Holders. Iridium, Capital or any of Iridium's
domestically incorporated Wholly-Owned Subsidiaries may act as Paying Agent,
Registrar or co-registrar.
4. Indenture and Guarantees.
The Note Issuers issued the Series B Notes under an Indenture dated as
of July 16, 1997 (the "Indenture"), among the Note Issuers, as joint and several
obligors, the Guarantor Subsidiaries (as defined in the Indenture) and the
Trustee. Capitalized terms used herein are used as defined in the Indenture
unless otherwise defined herein. The terms of the Series B Notes include those
stated in the Indenture and those made part of such Indenture by reference to
the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) (the
"TIA"), as in effect on the date of the Indenture until such time as the
Indenture is qualified under the TIA, and thereafter as in effect on the date on
which the Indenture is qualified under the TIA. Notwithstanding anything to the
contrary herein, the Series B Notes are subject to all such terms, and holders
of Series B Notes are referred to the Indenture and the TIA for a statement of
them. The Series B Notes are obligations of the Note Issuers limited in
aggregate principal amount to $500,000,000. Payment on each Series B Note is
guaranteed on a senior basis, jointly and severally, by the Guarantor
Subsidiaries pursuant to Article X of the Indenture.
109
4
5. Optional Redemption.
Except as described in the next succeeding paragraph, the Series B
Notes will not be redeemable at the option of the Note Issuers prior to July
15, 2002. On and after such date, the Series B Notes will be redeemable, at
either Note Issuer's option, in whole or in part, at any time upon not less
than 30 nor more than 60 days' prior notice mailed by first-class mail to each
Holder's registered address, at the following redemption prices (expressed in
percentages of principal amount), plus accrued and unpaid interest and
Liquidated Damages, if any, to the redemption date (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date that is on or prior to the date of redemption),
if redeemed during the 12-month period commencing on July 15 of the years set
forth below:
REDEMPTION
YEAR PRICE
---- -----
2002 107.500%
2003 103.750%
2004 and thereafter 100.000%
In addition, at any time and from time to time on or prior to July
15, 2000, either Note Issuer may redeem in the aggregate up to 33-1/3% of the
original aggregate principal amount of the Series B Notes with the cash
proceeds to Iridium of one or more Equity Offerings, at a redemption price
(expressed as a percentage of principal amount thereof) of 115% plus accrued
and unpaid interest and Liquidated Damages, if any, to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date that is on or prior
to the date of redemption); provided, however, that at least 66-2/3% of the
original aggregate principal amount of the Series B Notes must remain
outstanding after each such redemption.
6. Notice of Redemption.
In the case of any partial redemption, selection of the Series B
Notes for redemption will be made by the Trustee on a pro rata basis, by lot or
by such other method as the Trustee in its sole discretion deems to be fair and
appropriate, although no Series B Note of $1,000 in original principal amount
or less will be redeemed in part. If any Series B Note is to be redeemed in
part only, the notice of redemption relating to such Series B Note will state
the portion of the principal amount thereof to be redeemed. A new Series B
Note in principal amount equal to the unredeemed portion thereof will be issued
in the name of the Holder thereof upon cancellation of the original Series B
Note.
7. Subsidiary Guaranties.
The Initial Guarantors will provide Subsidiary Guaranties on the
Issue Date. In the event that, after the Issue Date, Iridium acquires or
creates a Subsidiary other than a Foreign Subsidiary, Iridium will cause such
Subsidiary (unless such Subsidiary is an Unrestricted Subsidiary) to, jointly
and severally, as primary obligors and not merely as sureties, irrevocably
Guarantee on a senior unsecured basis the performance and punctual payment when
due, whether at Stated Maturity, by acceleration or otherwise, of all
obligations of the Note Issuers under the Indenture and the Series B Notes
issued pursuant thereto. Iridium may cause any Foreign Subsidiary to execute
and deliver a Subsidiary Guaranty in accordance with the provisions of the
Indenture, in which case such Foreign Subsidiary will be a "Guarantor
Subsidiary" for purposes of the Indenture. Each Subsidiary Guaranty will be
limited in amount to an amount not to exceed the maximum amount that can be
Guaranteed by the applicable Guarantor Subsidiary without rendering such
Subsidiary Guaranty voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.
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A Subsidiary Guaranty will be released upon (i) the sale of all of
the Capital Stock, or all or substantially all of the assets, of the applicable
Guarantor Subsidiary (in each case to an entity other than to Iridium or a
Subsidiary of Iridium), (ii) the designation by Iridium of the applicable
Guarantor Subsidiary as an Unrestricted Subsidiary, in each case in compliance
with the Indenture, (iii) the reorganization of the applicable Guarantor
Subsidiary as a Foreign Subsidiary, or (iv) upon satisfaction of the
requirements of Section 5.01(d) (merger) or 8.01(b) (defeasance) of the
Indenture.
8. Change of Control Offer.
Upon the occurrence of a Change of Control, each Holder will have the
right to require the Note Issuers to repurchase all or any part of such
Holder's Series B Notes at a purchase price in cash equal to 101% of the
principal amount of the Series B Notes, plus accrued and unpaid interest and
Liquidated Damages, if any, to the date of purchase.
9. Denominations; Transfer; Exchange.
The Series B Notes are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer
or exchange Series B Notes in accordance with the Indenture. Upon any transfer
or exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay
any taxes required by law or permitted by the Indenture. The Registrar need
not register the transfer of or exchange any Series B Notes selected for
redemption (except, in the case of a Series B Note to be redeemed in part, the
portion of the Series B Note not to be redeemed) or to transfer or exchange any
Series B Notes for a period of 15 days prior to a selection of Series B Notes
to be redeemed or 15 days before an interest payment date.
10. Persons Deemed Owners.
The registered Holder of this Series B Note may be treated as the
owner of it for all purposes.
11. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall, subject to the requirements
of applicable escheat laws, pay the money back to the Note Issuers at its
written request unless an abandoned property law designates another Person.
After any such payment, Holders entitled to the money must look only to the
Note Issuers and not to the Trustee for payment.
12. Legal Defeasance and Covenant Defeasance.
The Note Issuers at any time may terminate all their obligations
under the Series B Notes and the Indenture upon satisfaction of certain
conditions specified in the Indenture, except for certain obligations,
including those respecting the defeasance trust and obligations to register the
transfer or exchange of the Series B Notes, to replace mutilated, destroyed,
lost or stolen Series B Notes and to maintain a registrar and paying agent in
respect of the Series B Notes. The Note Issuers at any time may terminate
their obligations under certain restrictive covenants. If the Note Issuers
exercise their legal defeasance option or their covenant defeasance option,
each Guarantor Subsidiary will be released from all of its obligations with
respect to its Subsidiary Guaranty (and no Restricted Subsidiary (other than
Capital) will thereafter be obligated to execute, deliver, or endorse any
Series B Note; nor shall any such execution, delivery or endorsement thereafter
bind any Restricted Subsidiary).
13. Amendment and Waiver.
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Subject to certain exceptions, the Indenture may be amended with the
consent of the Holders of a majority in principal amount of the Series B Notes
then outstanding and any past default and its consequences or compliance with
any provisions may be waived with the consent of the Holders of a majority in
principal amount of the Series B Notes then outstanding. Without the consent of
any Holder, the Note Issuers and the Trustee may amend the Indenture to cure any
ambiguity, omission, defect or inconsistency, to provide for the assumption by a
successor corporation of the obligations of either Note Issuer under the
Indenture, to provide for uncertificated Series B Notes in addition to or in
place of certificated Series B Notes, to add further Subsidiary Guaranties with
respect to such Series B Notes, to release Guarantor Subsidiaries when permitted
by such Indenture, to secure such Series B Notes, to add to the covenants of the
Note Issuers for the benefit of the Holders of such Series B Notes or to
surrender any right or power conferred upon the Note Issuers, to make any change
that does not adversely affect the rights of any Holder of such Series B Notes
or to comply with any requirement of the SEC in connection with the
qualification of such Indenture under the TIA.
14. Restrictive Covenants.
The Indenture contains certain covenants that, among other things,
limit the ability of Iridium and its Restricted Subsidiaries to make restricted
payments, to incur indebtedness, to create liens, to issue capital stock of
subsidiaries, to sell assets, to permit restrictions on dividends and other
payments by subsidiaries to Iridium, to consolidate, merge or sell all or
substantially all of its assets, to engage in transactions with affiliates, to
maintain insurance or to engage in certain businesses. The limitations are
subject to a number of important qualifications and exceptions. The Note
Issuers must report to the Trustee on compliance with such limitations.
15. Defaults and Remedies.
If an Event of Default under the Indenture occurs and is continuing,
the Trustee or the Holders of at least 25% in principal amount of the
outstanding Series B Notes by notice to the Note Issuers and the Trustee in
writing may declare the principal of and accrued but unpaid interest on and
Liquidated Damages, if any, on all the Series B Notes to be due and payable.
If an Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of either Note Issuer occurs and is continuing, the principal of
and Liquidated Damages, if any, and interest on all the Series B Notes will
become immediately due and payable without any declaration or other act on the
part of the Trustee or any Holders. Holders of Series B Notes may not enforce
the Indenture or the Series B Notes except as provided in the Indenture. Under
certain circumstances, the Holders of a majority in principal amount of the
Series B Notes then outstanding may rescind any such acceleration with respect
to the Series B Notes and its consequences.
16. No Recourse Against Others.
No director, officer, employee, incorporator or member of Iridium, as
such, will have any liability for any obligations of the Note Issuers or any
Guarantor Subsidiary under the Series B Notes or the Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each holder of Series B Notes by accepting a Series B Note waives and releases
all such liability (such waiver will not constitute a waiver of liabilities
under the Federal securities laws, however, if it is the view of the SEC that
such a waiver would be against public policy).
17. Registration Rights.
Pursuant to the Exchange and Registration Rights Agreement, the
Issuers will be obligated upon the occurrence of certain events to consummate
an exchange offer pursuant to which the holders of Series B Notes shall,
subject to certain limitations, have the right to exchange Initial Series B
Notes for the Exchange Series B Notes or Private Exchange Series B Notes, which
will be registered under the Securities Act, in like principal amount and
112
having terms identical in all material respects as the Series B Notes. The
Holders shall be entitled to receive certain liquidated damages in the event
such exchange offer is not consummated and upon certain other conditions, all
pursuant to and in accordance with the terms of the Exchange and Registration
Rights Agreement.
18. Trustee Dealings with the Note Issuers.
Subject to certain limitations imposed by the Act, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Series B Notes and may otherwise deal with and collect obligations
owed to it by the Note Issuers or its Affiliates and may otherwise deal with
the Note Issuers or its Affiliates with the same rights it would have if it
were not Trustee.
19. Governing Law.
THE SERIES B NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
20. Authentication.
This Series B Note shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Series B Note.
21. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
22. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Note Issuers have caused CUSIP numbers
to be printed on the Series B Notes and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Series B Notes or as contained in any notice of redemption and reliance may
be placed only on the other identification numbers placed thereon.
THE NOTE ISSUERS WILL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND
WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH HAS IN IT THE TEXT
OF THIS SERIES B NOTE IN LARGER TYPE. REQUESTS MAY BE MADE TO:
IRIDIUM LLC
0000 XXX XXXXXX, X.X.
XXXXXXXXXX, XX 00000
ATTENTION: GENERAL COUNSEL
113
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Series B Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to
transfer this Series B Note on the books of the Note Issuers.
The agent may substitute another to act for him.
-----------------------------------------------------------------
Date: Your Signature:
-------------------- ----------------------
Signature Guarantee:
---------------------------------------------
(Signature must be guaranteed by a participant in a
recognized signature guarantee medallion program)
-----------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
114
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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SERIES B NOTE(1)
The following increases or decreases in this Global Series B Note
have been made:
Amount of decrease Amount of increase Principal amount Signature of
in Principal in Principal of this Global authorized officer
Date of Amount of this Amount of this Series B Note following such of Trustee or
Exchange Global Series B Note Global Series B Note decrease or increase Series B Notes Custodian
-------- -------------------- -------------------- -------------------- ------------------------
--------------------
(1) This Schedule should only be added if the Security is issued in
global form.
115
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Series B Note purchased by the Note
Issuers pursuant to Section 4.06 or 4.08 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Series B Note
purchased by the Note Issuers pursuant to Section 4.06 or 4.08 of the
Indenture, state the amount: $
Date: Your Signature:
--------------------- -------------------
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:---------------------------------------------
(Signature must be guaranteed by a participant
in a recognized signature guarantee medallion
program)
116
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED
UPON TERMINATION OF RESTRICTED PERIOD
Iridium LLC
Iridium Capital Corporation
State Street Bank and Trust Company
x/x Xxxxx Xxxxxx Xxxx and Trust Company
Corporate Services Division
0xx Xxxxx
0 Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Re: Iridium LLC and Iridium Capital Corporation (the "Note Issuers") 14%
Senior Notes due 2005, Series B (the "Series B Notes")
Ladies and Gentlemen:
This letter relates to Series B Notes represented by a temporary
global note certificate (the "Temporary Certificate"). Pursuant to Section
2.01 of the Indenture dated as of July 16, 1997 relating to the Series B Notes
(the "Indenture"), the undersigned hereby certifies that (1) the undersigned is
the beneficial owner of $[__________] principal amount of initial Series B
Notes represented by the Temporary Certificate and (2) the undersigned is a
Non-U.S. person (as defined in the Indenture) to whom the initial Series B
Notes could be transferred in accordance with Rule 904 of Regulation S
promulgated under the Securities Act of 1933, as amended. Accordingly, you are
hereby requested to transfer the principal amount of initial Series B Notes
represented by the Temporary Certificate into a permanent global certificate,
all in the manner provided by the Indenture.
You and the Note Issuers are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate
have the meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By:
--------------------------------
Authorized Signature
117
EXHIBIT D
FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS TO NON-QIB
INSTITUTIONAL ACCREDITED INVESTORS
Transferee Letter of Representation
Iridium LLC
Iridium Capital Corporation
State Street Bank and Trust Company
x/x Xxxxx Xxxxxx Xxxx and Trust Company
Corporate Services Division
0xx Xxxxx
0 Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Ladies and Gentlemen:
Reference is hereby made to the Indenture dated as of July 16, 1997
in regard of the 14% Senior Notes due 2005, Series B (the "Series B Notes")
among Iridium LLC and Iridium Capital Corporation, as joint and several
obligors (the "Note Issuers"), Iridium Roaming LLC and Iridium IP LLC (the
"Initial Guarantors," and together with the Note Issuers, the "Issuers") and
State Street Bank and Trust Company as Trustee. Capitalized terms used but not
defined herein will have the meaning given them in the Indenture.
This certificate is delivered to request a transfer of $[__________]
principal amount of the Series B Notes.
Upon transfer, the Series B Notes would be registered in the name of
the new beneficial owner as follows:
Name:
----------------------------------------------
Address:
----------------------------------------------
Taxpayer ID Number:
-----------------------------------
The undersigned represents and warrants to you that:
1. The undersigned is an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended (the "Securities Act")) purchasing for its own account or for the
account of such an institutional "accredited investor" Series B Notes in a
transaction exempt from the registration requirements of the Securities Act. The
undersigned has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risk of its investment in the
Series B Notes and invests in or purchase securities similar to the Series B
Notes in the normal course of our business. The undersigned and any accounts for
which it is acting are each able to bear the economic risk of its investment.
2. The undersigned understands that the Series B Notes have not
been registered under the Securities Act and, unless so registered, may not be
sold except as permitted in the following sentence. The undersigned agrees on
its own behalf and on behalf of any investor account for which it is purchasing
Series B Notes to offer, sell or otherwise transfer such Series B Notes prior to
the date which is two years after the later of the date of original issue and
the last date on which the Issuers or any affiliate of an Issuer was the owner
of such Series
118
2
B Notes (or any predecessor thereto) (the "Resale Restriction Termination Date")
only (a) to the Issuers, (b) pursuant to a registration statement which has been
declared effective under the Securities Act, (c) in a transaction complying with
the requirements of Rule 144A under the Securities Act, to a person it
reasonably believes is a qualified institutional buyer under Rule 144A (a "QIB")
that purchases for its own account or for the account of a QIB and to whom
notice is given that the transfer is being made in reliance on Rule 144A, (d)
pursuant to offshore transactions meeting the requirements of Rule 903 or Rule
904 under the Securities Act or (e) to an institutional "accredited investor"
within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act
that is purchasing for its own account or for the account of such an
institutional "accredited investor", in a transaction exempt from the
registration requirements of the Securities Act (if available) or (f) pursuant
to any other available exemption from the registration requirements of the
Securities Act and, in each case (a) through (f), in accordance with all
applicable securities laws of the states of the United States and other
jurisdictions. The foregoing restrictions on resale will not apply subsequent to
the Resale Restriction Termination Date. If any resale or other transfer of the
Series B Notes is proposed to be made pursuant to clause (e) above prior to the
Resale Restriction Termination Date, the transferor shall deliver a letter from
the transferee substantially in the form of this letter to the Issuers and the
Trustee, which shall provide, among other things, that the transferee is an
institutional "accredited investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act and that it is acquiring such Series B Notes
for investment purposes and not for distribution in violation of the Securities
Act. Each purchaser acknowledges that the Issuers and the Trustee reserve the
right prior to any offer, sale or other transfer prior to the Resale Restriction
Termination Date of the Series B Notes pursuant to clause (d), (e) or (f) above
to require the delivery of an opinion of counsel, certifications and/or other
information satisfactory to the Issuers and the Trustee.
TRANSFEREE:
------------------------------
BY:
-----------------------------
119
EXHIBIT E
FORM OF TRANSFER CERTIFICATE FOR
TRANSFER TO RULE 144A GLOBAL SECURITY
BEARING A SECURITIES ACT LEGEND
Iridium LLC and
Iridium Capital Corporation
State Street Bank and Trust Company
x/x Xxxxx Xxxxxx Xxxx and Trust Company
Corporate Services Division
0xx Xxxxx
0 Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
[date]
Re: Iridium LLC and Iridium Capital Corporation (the "Note Issuers") 14%
Senior Notes due 2005, Series B (the "Series B Notes")
Ladies and Gentlemen:
Reference is hereby made to the Indenture dated as of July 16, 1997
in regard of the Series B Notes among the Note Issuers, as joint and several
obligors, and IRIDIUM Roaming LLC and Iridium IP LLC (the "Initial Guarantors,"
and together with the Note Issuers, the "Issuers") and State Street Bank and
Trust Company as Trustee. Capitalized terms used but not defined herein will
have the meaning given them in the Indenture.
This letter relates to $[______] aggregate principal amount of the
Series B Notes which are held in [the form of a beneficial interest in the
Regulation S Temporary Global Series B Note (CINS No. __________) with the
Depositary in the name of the undersigned] [definitive form].
The undersigned has requested transfer of such Series B Notes to a
Person who will take delivery thereof in the form of a beneficial interest in
the Rule 144A Global Series B Note (CUSIP No. ___________). In connection with
such transfer, the undersigned does hereby confirm that such transfer has been
effected in accordance with the transfer restrictions set forth in the
Indenture and on the Notes and pursuant to and in accordance with Rule 144A
under the U.S. Securities Act of 1933, as amended, and accordingly, the
undersigned represents that:
1. the Series B Notes are being transferred to a transferee that
the undersigned reasonably believes is purchasing the Series B Notes for
its own account or one or more accounts with respect to which the
transferee exercises sole investment discretion; and
120
2
2. the undersigned reasonably believes that transferee and any such
account is a "qualified institutional buyer" within the meaning of Rule
144A, in a transaction meeting the requirements of Rule 144A and in
accordance with any applicable securities laws of any state of the United
States or any other jurisdiction.
[NAME OF TRANSFEROR]
By:
------------------------------
Name:
Title:
Dated:
-----------------------
121
EXHIBIT F
FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S
[date]
Iridium LLC and
Iridium Capital Corporation
State Street Bank and Trust Company
x/x Xxxxx Xxxxxx Xxxx and Trust Company
Corporate Services Division
0xx Xxxxx
0 Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Corporate Trust Department
Re: Iridium LLC and Iridium Capital Corporation (the "Note Issuers") 14%
Senior Notes due 2005, Series B (the "Series B Notes")
Ladies and Gentlemen:
Reference is hereby made to the Indenture dated as of July 16, 1997
in regard of the Series B Notes among the Note Issuers, as joint and several
obligors, and Iridium Roaming LLC and Iridium IP LLC (the "Initial Guarantors,"
and together with the Note Issuers, the "Issuers") and State Street Bank and
Trust Company as Trustee. Capitalized terms used but not defined herein will
have the meaning given them in the Indenture.
In connection with our proposed sale of $[__________] aggregate
principal amount of the Series B Notes, the undersigned confirms that such sale
has been effected pursuant to and in accordance with Regulation S under the
United States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the undersigned represents that:
(1) the offer of the Series B Notes was not made to a person in the
United States;
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or the undersigned and any person
acting on its behalf reasonably believed that the transferee was outside
the United States or (b) the transaction was executed in, on or through
the facilities of a designated off-shore securities market and neither the
undersigned nor any person acting on its behalf knows that the transaction
has been prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in the
United States in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during the restricted period and the
provisions of Rule 903(c)(2) or Rule 904(c)(1) of Regulation S are applicable
thereto, the undesigned confirms that such sale has been made in accordance
with the applicable provisions of Rule 903(c)(2) or Rule 904(c)(1), as the case
may be.
You and the Note Issuers are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official
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inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
-----------------------------------
[Name of Transferor]
By:
--------------------------------
Authorized Signature
Name:
Title:
Date:
Upon transfer, the Series B Notes should be registered in the name of the new
beneficial owner as follows:
Name:
----------------------------
Address:
-------------------------
Taxpayer ID Number:
--------------
123
EXHIBIT G
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
[ ], among [NEW GUARANTOR SUBSIDIARY] (the "New Guarantor Subsidiary"),
a subsidiary of [IRIDIUM OR CAPITAL] (or its successor), a
______________________ (the "Note Issuers"), IRIDIUM LLC, a Delaware
limited liability company and IRIDIUM CAPITAL CORPORATION, a Delaware
corporation, on behalf of themselves and the Guarantor Subsidiaries (the
"Existing Guarantor Subsidiaries") under the Indenture referred to below,
and STATE STREET BANK AND TRUST COMPANY, a Massachusetts bank and trust
company, as trustee under the indenture referred to below (the "Trustee")
W I T N E S S E T H :
WHEREAS Iridium LLC, a Delaware limited liability company and Iridium
Capital Corporation a Delaware corporation, as joint and several obligors, have
heretofore executed and delivered to the Trustee an Indenture (the
"Indenture"), dated as of July 16, 1997, providing for the issuance of an
aggregate principal amount of up to $500,000,000 of 14% Senior Notes due 2005,
Series B (the "Series B Notes") and the Initial Guarantors agreed to guarantee
those obligations;
WHEREAS Section 4.15 of the Indenture provides that under certain
circumstances the Note Issuers is required to cause the New Guarantor
Subsidiary to execute and deliver to the Trustee a supplemental indenture
pursuant to which the New Guarantor Subsidiary shall unconditionally guarantee
all of the Note Issuers' obligations under the Series B Notes pursuant to a
Subsidiary Guaranty on the terms and conditions set forth herein; and
WHEREAS pursuant to Section 9.01 of the Indenture, the Trustee, the
Note Issuers and Existing Guarantor Subsidiaries are authorized to execute and
deliver this Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
New Guarantor Subsidiary, the Note Issuers, the Existing Guarantor Subsidiaries
and the Trustee mutually covenant and agree for the equal and ratable benefit
of the holders of the Series B Notes as follows:
1. Definitions. (a) Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
(b) For all purposes of this Supplemental Indenture, except
as otherwise herein expressly provided or unless the context otherwise requires:
(i) the terms and expressions used herein shall have the same meanings as
corresponding terms and expressions used in the Indenture; and (ii) the words
"herein," "hereof" and "hereby" and other words of similar import used in this
Supplement refer to this Supplement as a whole and not to any particular section
hereof.
2. Agreement to Guarantee. The New Guarantor Subsidiary hereby
agrees, jointly and severally with all other Guarantor Subsidiaries, to
Guarantee the Note Issuers' obligations under the Series B Notes on the terms
and subject to the conditions set forth in Article X of the Indenture and to be
bound by all other applicable provisions of the Indenture.
3. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture
shall form a part of the Indenture for all purposes, and every holder of Series
B Notes heretofore or hereafter authenticated and delivered shall be bound
124
2
hereby.
4. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
5. Trustee Makes No Representation. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental
Indenture.
6. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
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3
7. Effect of Headings. The Section headings herein are for
convenience only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR SUBSIDIARY],
By:
-----------------------------
Name:
Title:
IRIDIUM LLC, on behalf
of itself and the Existing
Guarantor Subsidiaries,
By: -----------------------------
Name:
Title:
IRIDIUM CAPITAL CORPORATION
By: ------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
as Trustee,
By: ------------------------------
Name:
Title:
126
SCHEDULE I
Support Agreement, dated as of July 15, 1992 between Motorola and
Iridium, as amended.
