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EXHIBIT 1
IRIDIUM OPERATING LLC
IRIDIUM CAPITAL CORPORATION
$350,000,000 ___ % Senior Notes due 2005, Series D
UNDERWRITING AGREEMENT
May __, 1998
CHASE SECURITIES INC.
BARCLAYS CAPITAL INC.
XXXXXXX LYNCH, XXXXXX,
XXXXXX & XXXXX INCORPORATED
c/o Chase Securities Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Iridium Operating LLC, a Delaware limited liability company
("Iridium"), and Iridium Capital Corporation, a Delaware corporation and a
wholly owned subsidiary of Iridium ("Capital" and, together with Iridium, the
"Note Issuers"), propose to issue and sell $350,000,000 aggregate principal
amount of ___% Senior Notes due 2005, Series D (the "Notes"). The Notes will be
guaranteed (the "Guarantees") on a senior unsecured basis by Iridium Roaming
LLC, Iridium IP LLC and Iridium Facilities Corporation (collectively, the
"Guarantor Subsidiaries" and, together with the Note Issuers, the "Issuers").
The Notes and the Guarantees are collectively referred to herein as the
"Securities"). The Notes will be issued pursuant to an Indenture to be dated as
of __________ __, 1998 (the "Indenture") among the Note Issuers, the Guarantor
Subsidiaries and State Street Bank and Trust Company, as trustee (the
"Trustee"), the form of which has been filed as an exhibit to the Registration
Statement (as defined below). The Issuers hereby confirm their agreement with
Chase Securities Inc. ("CSI"), Barclays Capital Inc. and Xxxxxxx Lynch, Xxxxxx,
Xxxxxx & Xxxxx Incorporated (collectively, the "Underwriters") concerning the
purchase of the Notes from the Note Issuers by the several Underwriters.
1. Representations, Warranties and Agreements of the Issuers.
Each of the Issuers, jointly and severally, represent and warrant to, and agree
with, the several Underwriters on and as of the date hereof and the Closing Date
(as defined in Section 3) that:
(a) A registration statement on Form S-1 (File No.
333-______), including a form of prospectus, relating to the Securities
has been prepared by the Issuers in conformity with the requirements of
the Securities Act of 1933, as amended (the "Securities Act"), and the
rules and regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission") thereunder and has been
filed by the Issuers with the Commission. The Issuers may have filed
one or more amendments thereto, including the related preliminary
prospectus, each of which has previously been furnished to you. The
Issuers will next file with the Commission either (i) prior to
effectiveness of such registration statement, a further amendment to
such registration statement (including the form of final prospectus) or
(ii) after effectiveness of such registration statement, a final
prospectus in accordance with Rules 430A and 424 (b)(1) or (4). In the
case of clause (ii) above, the Issuers have included in such
registration statement, as amended at the Effective Time (as defined
below), all information (other than information permitted to be omitted
from the Registration Statement when it becomes effective pursuant to
Rule 430A ("Rule 430A
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Information")) required by the Securities Act and the Rules and
Regulations to be included in the final prospectus with respect to the
Securities and the offering thereof. As filed, such amendment and form
of final prospectus, or such final prospectus, shall contain all Rule
430A Information, together with all other such required information,
with respect to the Securities and the offering thereof and, except to
the extent the Underwriters shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior
to the execution of this Agreement or, to the extent not completed at
such time, shall contain only such specific additional information and
other changes (beyond that contained in the latest Preliminary
Prospectus) as any Issuer has advised you, prior to the execution of
this Agreement, will be included or made therein. For purposes of this
Agreement, "Effective Time" means the date and time as of which such
registration statement, or the most recent post-effective amendment
thereto, if any, was or is declared effective by the Commission, and
"Preliminary Prospectus" means each prospectus included in such
registration statement, or amendments thereof, before it becomes
effective under the Securities Act, any prospectus filed with the
Commission by the Issuers pursuant to Rule 424(a) and the prospectus
included in the Registration Statement at the Effective Time that omits
Rule 430A Information. Such registration statement, as amended at the
Effective Time, including all Rule 430A Information, if any, is
hereinafter referred to as the "Registration Statement," and the form
of prospectus relating to the Securities, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) or, if no
such filing is required, as included in the Registration Statement is
hereinafter referred to as the "Prospectus." Capitalized terms used but
not defined herein shall have the meanings given to such terms in the
Prospectus.
(b) At the Effective Time, the Registration Statement did or
will, and when the Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Prospectus
(and any supplements thereto) will, comply in all material respects
with the applicable requirements of the Securities Act and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
respective rules and regulations of the Commission thereunder; at the
Effective Time, the Registration Statement did not or will not include
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; at the Effective Time and on the
Closing Date, the Indenture did or will conform in all material
respects with the applicable requirements of the Trust Indenture Act
and the rules and regulations of the Commission thereunder; and, at the
Effective Time, the Prospectus, if not filed pursuant to Rule 424(b),
did not or will not, and on the date of any filing pursuant to Rule
424(b) and on the Closing Date, the Prospectus (together with any
supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. The preceding sentence does not
apply to (i) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification (Form T-1) of
the Trustee under the Trust Indenture Act or (ii) information contained
in or omitted from the Registration Statement or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
specifically for use therein (the "Underwriters' Information").
(c) Each of Iridium, Iridium Roaming LLC and Iridium IP LLC
has been duly formed and is validly existing as a limited liability
company in good standing under the laws of the State of Delaware, is
duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its respective ownership or
lease of property or the conduct of its businesses requires such
qualification, and has all power and authority necessary to own or hold
its properties and to conduct the businesses in which it is engaged,
except where the failure to so qualify or have such power or authority
would not have a material adverse effect on the condition (financial or
otherwise), or in the earnings, business affairs or business prospects
of Iridium, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"). Iridium's only subsidiaries are Capital,
Iridium Roaming LLC, Iridium Facilities Corporation and Iridium IP LLC.
(d) Each of Capital and Iridium Facilities Corporation has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of the state of Delaware, is duly qualified to
do business and is in good standing as foreign corporation in each
jurisdiction in which its ownership or lease of property or the conduct
of its businesses requires such qualification, and has all power and
authority necessary to own or hold its properties and to conduct the
businesses in which it is engaged, except where
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the failure to so qualify or have such power or authority would not,
singularly or in the aggregate, have a Material Adverse Effect. Neither
Capital nor Iridium Facilities Corporation has any subsidiaries.
(e) Iridium has an authorized capitalization as set forth in
the Prospectus under the heading "Capitalization." All of the
outstanding shares of capital stock or limited liability company
interests, as the case may be, of Capital and the Guarantor
Subsidiaries have been duly and validly authorized and issued, are
fully paid and non-assessable and are owned directly by Iridium, free
and clear of any lien, charge, encumbrance, security interest,
restriction upon voting or transfer or any other claim of any third
party.
(f) The Issuers have full right, power and authority to
execute and deliver this Agreement, the Indenture and the Securities
(collectively, the "Transaction Documents") to the extent a party
thereto and to perform their obligations hereunder and thereunder.
(g) This Agreement has been duly authorized, executed and
delivered by the Issuers.
(h) The Indenture has been duly authorized by the Note Issuers
and the Guarantor Subsidiaries and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will
constitute a valid and legally binding agreement of the Note Issuers
and the Guarantor Subsidiaries enforceable against the Note Issuers and
the Guarantor Subsidiaries in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(i) The Securities have been duly authorized by the Note
Issuers and the Guarantor Subsidiaries and, when the Securities have
been duly executed, authenticated, issued and delivered as provided in
the Indenture and paid for as provided herein, will be duly and validly
issued and outstanding and will constitute valid and legally binding
obligations of the Note Issuers and the Guarantor Subsidiaries, as the
case may be, entitled to the benefits of the Indenture and enforceable
against the Note Issuers and the Guarantor Subsidiaries, as the case
may be, in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(j) Each of the Transaction Documents, the Limited Liability
Company Agreement of Iridium LLC, dated as of July 29, 1996, as amended
(the "LLC Agreement"), and the Limited Liability Company Agreement of
Iridium Operating LLC dated as of December 18, 1997, as amended (the
"Iridium Operating LLC Agreement"), described in the Prospectus
conforms in all material respects to the description thereof contained
in the Prospectus; provided, however, that the Issuers make no
representation or warranty as to whether this Agreement conforms to the
description thereof contained in the Prospectus.
(k) The execution, delivery and performance by each of the
Issuers of each of the Transaction Documents to which it is a party,
the issuance, authentication, sale and delivery of the Securities and
compliance by the Issuers with the terms thereof and the consummation
of the transactions contemplated by the Transaction Documents will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Issuers
pursuant to, any material indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which the
Issuers are a party or by which the Issuers are bound or to which any
of the property or assets of the Issuers are subject (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated by this Agreement or the Transaction Documents), nor will
such actions result in any violation of the provisions of the charter,
by-laws, certificate of formation or limited liability company
agreement of the Issuers or any statute or any judgment, order,
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decree, rule or regulation of any court or arbitrator or governmental
agency or body having jurisdiction over the Issuers or any of their
properties or assets; and no consent, approval, authorization or order
of, or filing or registration with, any such court or arbitrator or
governmental agency or body under any such statute, judgment, order,
decree, rule or regulation is required for the execution, delivery and
performance by the Issuers of each of the Transaction Documents, the
issuance, authentication, sale and delivery of the Securities and
compliance by the Issuers with the terms thereof and the consummation
of the transactions contemplated by the Transaction Documents, except
for the registration of the Securities under the Securities Act, the
qualification of the Indenture under the Trust Indenture Act and such
consents, approvals, authorizations, filings, registrations or
qualifications (i) which shall have been obtained or made prior to the
Closing Date and (ii) as may be required to be obtained or made under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and applicable state securities laws in connection with the purchase
and distribution of the Securities by the Underwriters. As used herein,
a "Repayment Event" means any event or conditions which gives the
holder of any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by Iridium.
(l) The accountants who certified the financial statement and
the consolidated financial statements included in the Prospectus are
independent public accountants within the meaning of the Securities Act
and the Rules and Regulations thereunder. The financial statement and
the consolidated financial statements included in the Registration
Statement and Prospectus, together with the related notes, present
fairly the financial position of Iridium, Iridium's predecessor and
their respective consolidated subsidiaries at the dates indicated and
the statement of operations, stockholders' equity, members' equity and
cash flows of Iridium, Iridium's predecessor and their respective
consolidated subsidiaries for the periods specified; said financial
statement and the consolidated financial statements have been prepared
in conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved, except,
in the case of the interim financial statements, for the absence of
complete footnote disclosure and customary year-end adjustments. The
selected financial data included in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent
with that of the audited financial statement and the consolidated
financial statements included in the Prospectus.
(m) Except for matters which are described in the Prospectus,
there is no action, suit, proceeding, inquiry or investigation before
or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of Iridium, threatened,
against or affecting Iridium, which is required to be disclosed in the
Registration Statement, or which might reasonably be expected to result
in a Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in this Agreement or the
Transaction Documents or the performance by Iridium of its obligations
hereunder or thereunder; all pending legal or governmental proceedings
to which Iridium is a party or of which any of its property or assets
is the subject which are not described in the Prospectus, including
ordinary routine litigation incidental to the business, would not
reasonably be expected to result in a Material Adverse Effect.
(n) No action has been taken and no statute, rule, regulation
or order has been enacted, adopted or issued by any governmental agency
or body which prevents the issuance of the Securities pursuant to the
Transaction Documents, or suspends the sale of the Securities in any
jurisdiction; no injunction, restraining order or order of any nature
by any federal or state court of competent jurisdiction has been issued
with respect to the Issuers which would prevent or suspend the issuance
or sale of the Securities or the use of the Preliminary Prospectus or
Prospectus in any jurisdiction; and the Issuers have complied with any
and all requests by any Federal or state securities authority for
additional information to be included in the Preliminary Prospectus or
Prospectus.
(o) There are no contracts or other documents which are
required under the Securities Act or the Rules and Regulations to be
described in the Prospectus or filed as exhibits to the Registration
Statement and which have not been so described or filed.
(p) None of the Issuers is (i) in violation of its by-laws,
certificate of formation, certificate of incorporation or limited
liability company agreement, as the case may be, (ii) in default in any
material respect, and no event has occurred which, with notice or lapse
of time or both, would constitute such a
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default, in the due performance or observance of any term, covenant or
condition contained in any material indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which it is
a party or by which it is bound or to which any of its property or
assets is subject or (iii) in violation in any material respect of any
law, ordinance, governmental rule, regulation or court decree to which
it or its property or assets may be subject, except for any default or
violation that would not result in a Material Adverse Effect.
(q) Except as disclosed in the Prospectus or as would not have
a Material Adverse Effect, (i) Iridium possesses or has the right to
benefit from such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by Iridium and
(ii) Iridium is in compliance with the current terms and conditions of
all such Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, have a Material Adverse Effect;
all of the Governmental Licenses are valid and in full force and
effect, except where the invalidity of such Governmental Licenses or
the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and Iridium has not
received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect. This representation
does not extend to Governmental Licenses required for Iridium to
conduct its business as proposed to be conducted, most of which have
not been obtained.
(r) Each of the Issuers believes that it is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus, will not be, an "investment company" or an entity
"controlled" by a company registered as an "investment company", as
such terms are defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act").
(s) Iridium maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(t) Iridium has insurance as required by Section 4.16 of the
Indenture.
(u) Except as described in the Prospectus or as would not have
a Material Adverse Effect, Iridium owns or possesses or reasonably
believes it can acquire on reasonable terms, adequate patents, patent
rights, licenses, inventions, copyrights (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures, but excluding any required
regulatory licenses or approvals), trademarks, service marks, trade
names or other intellectual property (collectively, "Intellectual
Property"), or that it can contract on reasonable terms with third
parties who can acquire the Intellectual Property necessary to carry on
the business now operated by Iridium or described in the Prospectus,
and Iridium has not received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect
to any Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate to protect
the interest of Iridium and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(v) Iridium has good and marketable title to all real property
it owns; Iridium has good title to all other properties owned by it
free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind except such as (i) are
described in the Prospectus or (ii) would not, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect;
and all of the leases
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and subleases material to the business of Iridium and under which
Iridium holds properties described in the Prospectus, are in full force
and effect, and Iridium has no notice of any material claim of any sort
that has been asserted by anyone adverse to the rights of Iridium under
any of the leases or subleases mentioned above, or affecting or
questioning the rights of Iridium to the continued possession of the
leased or subleased premises under any such lease or sublease, except
such as would not reasonably be expected to have a Material Adverse
Effect.
(w) No labor dispute with the employees of any of the Issuers
exists or, to the knowledge of the Issuers, is imminent.
(x) No "prohibited transaction" (as defined in Section 406 of
the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as
amended from time to time (the "Code")) or "accumulated funding
deficiency" (as defined in Section 302 of ERISA) or any of the events
set forth in Section 4043(b) of ERISA (other than events with respect
to which the 30-day notice requirement under Section 4043 of ERISA has
been waived) has occurred with respect to any employee benefit plan of
any of the Issuers which could reasonably be expected to have a
Material Adverse Effect; each such employee benefit plan (other than a
multiemployer plan) is in compliance in all material respects with
applicable law, including ERISA and the Code; the Issuers have not
incurred and do not expect to incur liability under Title IV of ERISA
with respect to the termination of, or withdrawal from, any pension
plan for which any of the Issuers would have any liability; and each
such pension plan (other than a multiemployer plan) that is intended to
be qualified under Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or by
failure to act, which could reasonably be expected to cause the loss of
such qualification.
(y) Except as described in the Prospectus and except as would
not, singly or in the aggregate, result in a Material Adverse Effect,
(i) Iridium is not in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (ii) Iridium has all permits, authorizations and approvals
required under any applicable Environmental Laws and is in compliance
with its requirements, (iii) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against
Iridium and (iv) there are no events or circumstances that might
reasonably be expected or form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting Iridium relating to
Hazardous Materials or any Environmental Laws.
(aa) Except as disclosed in the Prospectus and except as would
not reasonably be expected to have a Material Adverse Effect, to the
best of the Issuers' knowledge, none of the parties to (i) the Gateway
Authorization Agreements, (ii) the Space System Contract, (iii) the
Operations and Maintenance Contract, (iv) the Iridium Business Support
System Contract with Xxxxxxxx Consulting, (v) the Terrestrial Network
Development Contract, (vi) the Support Agreement between Iridium and
Motorola, (vii) the Amended and Restated Agreement Regarding Guarantee,
(viii) the Motorola MOU, (ix) the LLC Agreement and (x) the Iridium
Operating LLC Agreement (collectively, the foregoing are herein called
the "Principal Agreements"), is in breach of, or in default in the
performance or observance of, any material obligation, term, covenant
or condition contained therein. Each of the Principal Agreements that
Iridium has previously delivered to the Underwriters is a true and
correct copy, and there have been no additional amendments,
alterations, modifications or waivers thereto or in the exhibits or
schedules thereto. Iridium has duly and validly authorized, executed
and delivered each of the Principal Agreements to which it is a
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party and, to the best of the Issuers' knowledge, the other parties to
each of the Principal Agreements have duly and validly executed and
delivered each of the Principal Agreements and, assuming due and valid
authorization, execution and delivery by such other parties, each of
the Principal Agreements (except for the LLC Agreement) is a valid and
legally binding agreement of Iridium, enforceable against Iridium in
accordance with its terms subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; provided that no representation or warranty
is made with respect to any provision of any Principal Agreement
purporting to require indemnification of, or contribution to, the
liability losses, damages or claims of any person to the extent that
such provision may be limited by applicable laws.
(bb) The Federal Communications Commission (the "FCC") has
authorized Motorola, Inc. (Motorola, Inc., together with its
subsidiaries, "Motorola") to construct a mobile satellite system
capable of operating in the 1616 to 1626.5 MHz frequency bands,
consistent with the technical specifications set forth in its
application, the FCC's rules and the conditions set forth in the FCC's
Orders and Authorization (DA 95-131), released January 31, 1995, DA
95-372, released February 28, 1995, FCC 96-279, released June 27, 1996,
DA 96-1789, released October 30, 1996.
(cc) None of the Issuers is a party to any contract, agreement
or understanding with any person that would give rise to a valid claim
against the Underwriters for a brokerage commission, finder's fee or
like payment in connection with the offering and sale of the
Securities.
(dd) The Issuers have not taken and will not take, directly or
indirectly, any action prohibited of them by Regulation M under the
Exchange Act in connection with the offering of the Notes (other than
actions taken by the Underwriters on behalf of Iridium and its
affiliates).
(ee) The statements (including the assumptions described
therein) included in the Prospectus relating to Iridium's operations,
prospects, expected markets, expected technical capabilities, expected
funding needs, expected financing sources, expected pricing, expected
launch schedule, expected commercial operations schedule, estimates of
customer counts, estimates of the expected retail usage fees for
Iriduim World Satellite Services, estimates of the expected size of
addressable markets for mobile satellite services, the estimate of the
last year in which Iridium will have negative cash flow and a net
increase in year-end borrowings and expected future regulatory
approvals, as well as information concerning expected characteristics
of competing systems and expected actions of third parties such as
equipment suppliers, gateway operators, service providers and roaming
partners, were made by Iridium with a reasonable basis and reflect
Iridium's good faith estimate of the matters described therein.
(ff) The Issuers have complied with, and are and will be in
compliance with, the provisions of that certain Florida act relating to
disclosure of doing business with Cuba, codified as Section 517.075 of
the Florida statutes, and the rules and regulations thereunder or is
exempt therefrom.
(gg) Since the respective dates as of which information is
given in the Prospectus, except as otherwise stated therein, (i) there
has been no material adverse change in the condition (financial or
otherwise), or in the earnings, business affairs or business prospects
of any of the Issuers, whether or not arising in the ordinary course of
business, (ii) the Issuers have not incurred any liability or
obligation, direct or contingent, other than in the ordinary course of
business which is material with respect to Iridium, (iii) the Issuers
have not entered into any transaction, other than in the ordinary
course of business which is material with respect to Iridium, and (iv)
there has not been any change in the capital stock, membership
interests or long-term debt of the Issuers other than fluctuations in
revolving credit agreements, or any dividend or distribution of any
kind declared, paid or made by the Issuers on any class of their
capital stock or membership interests. Launch delays shall not be
covered by this representation.
2. Purchase and Resale of the Securities. (a) On the basis of
the representations, warranties and agreements contained herein, and subject to
the terms and conditions set forth herein, the Issuers agree to issue and sell
to each of the Underwriters, severally and not
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jointly, and each of the Underwriters, severally and not jointly, agrees to
purchase from the Issuers, the principal amount of Notes (together with the
related Guarantees) set forth opposite the name of such Underwriter on Schedule
1 hereto at a purchase price of ______% of the principal amount of the Notes
(together with accrued interest, if any, from May ___, 1998).
(b) The Issuers shall not be obligated to deliver any of the
Securities except upon payment for all of the Securities to be
purchased as provided herein. The Issuers acknowledge and agree that,
subject to the restrictions herein and under applicable law, the
Underwriters may sell Securities to any affiliate of an Underwriter and
that any such affiliate may sell Securities purchased by it to an
Underwriter.
3. Delivery of and Payment for the Securities. (a) Delivery
of the Notes and payment for the Notes shall be made at the offices of Milbank,
Tweed, Xxxxxx & XxXxxx, Washington, D.C., or at such other place as shall be
agreed upon by the Underwriters and the Issuers, at 10:00 A.M., New York City
time, on May __, 1998, or at such other time or date, not later than seven full
business days thereafter, as shall be agreed upon by the Underwriters and the
Issuers (such date and time of payment and delivery being referred to herein as
the "Closing Date").
(b) On the Closing Date, payment of the purchase price for the
Securities shall be made to the Issuers by wire or book-entry transfer
of immediately available funds to such account or accounts as the
Issuers shall specify prior to the Closing Date or by such other means
as the parties hereto shall agree prior to the Closing Date against
delivery to the Underwriters of the certificates evidencing the
Securities. Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further condition of
the obligations of the Underwriters hereunder. Upon delivery, the
Securities shall be in global form, registered in the name of DTC (as
hereinafter defined) or its nominee and in such denominations as CSI on
behalf of the Underwriters shall have requested in writing not less
than two full business days prior to the Closing Date. The Issuers
agree to make one or more global certificates evidencing the Securities
available for inspection by CSI on behalf of the Underwriters in New
York, New York or Washington, D.C. at least 24 hours prior to the
Closing Date.
4. Further Agreements of the Issuers. Each of the Issuers
agrees with each of the several Underwriters:
(a) If the Effective Time is prior to the execution and
delivery of this Agreement, to file the Prospectus with the Commission
pursuant to and in accordance with subparagraph (1) (or, if applicable
and if consented to by the Underwriters, subparagraph (4)) of Rule
424(b) within the time period prescribed by such rule and to provide
evidence satisfactory to the Underwriters of such timely filing; to
file promptly all reports and any definitive proxy or information
statements required to be filed by the Note Issuers with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the
delivery of a Prospectus is required in connection with the offering
and sale of the Securities;
(b) to advise the Underwriters promptly of any proposal to
amend or supplement the Registration Statement or the Prospectus and
not to effect such amendment or supplement without the consent of the
Underwriters, which consent shall not be unreasonably withheld or
delayed; to advise the Underwriters promptly of the receipt of any
comments from the Commission and of the effectiveness of the
Registration Statement (in each case if the Effective Time is
subsequent to the execution and delivery of this Agreement) and of any
amendment or supplement to the Registration Statement or the
Prospectus, or of any request by the Commission therefor, and upon
obtaining knowledge of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose; to advise the
Underwriters promptly of any order preventing or suspending the use of
any prospectus relating to the Securities, of the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction and of the initiation or threatening of any proceeding for
any such purpose; and to use its reasonable efforts to prevent the
issuance of any stop order or of any such order preventing or
suspending the use of any prospectus relating to the Securities or
suspending any such qualification and, if
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any such stop order or order or suspension is issued, to obtain the
lifting thereof at the earliest possible time;
(c) to furnish to each of the Underwriters, without charge,
one signed copy of the Registration Statement as originally filed with
the Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith; and to deliver
promptly without charge to the Underwriters such number of the
following documents as the Underwriters may from time to time
reasonably request: (i) conformed copies of the Registration Statement
as originally filed with the Commission and each amendment thereto (in
each case excluding exhibits other than this Agreement, the Indenture
and the computation of the ratio of earnings to fixed charges) and (ii)
each Preliminary Prospectus, the Prospectus and any amended or
supplemented Prospectus;
(d) prior to making any amendment to the Registration
Statement or amendment or supplement to the Prospectus, to furnish a
copy thereof to each of the Underwriters and counsel for the
Underwriters and not to effect any such amendment to the Registration
Statement or amendment or supplement to the Prospectus to which the
Underwriters shall reasonably object by notice to the Issuers after a
reasonable period to review;
(e) if the delivery of a prospectus is required at any time in
connection with the sale of the Securities and if at such time any
event shall occur or condition exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or counsel
for the Issuers, to amend or supplement the Prospectus in order that
the Prospectus will not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the
time it is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with
applicable law as a request from the Commission, to promptly prepare
such amendment or supplement as may be necessary to correct such untrue
statement or omission or so that the Prospectus, as so amended or
supplemented, will comply with the Securities Act, the Exchange Act,
with a request from the Commission or with any applicable law;
(f) as soon as practicable to make generally available to the
Note Issuers' security holders and to deliver to the Underwriters an
earning statement of Iridium and Iridium's subsidiaries (which need not
be audited) complying with Section 11(a) of the Securities Act and the
Rules and Regulations (including, at the option of Iridium, Rule 158);
(g) to promptly take from time to time such actions as the
Underwriters may reasonably request, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the
securities or Blue Sky laws of such jurisdictions as the Underwriters
may designate and to continue such qualifications in effect for so long
as required for the resale of the Securities; and to arrange for the
determination of the eligibility for investment of the Securities under
the laws of such jurisdictions as the Underwriters may reasonably
request; provided that no Issuer shall be obligated to qualify as a
foreign corporation or dealer in any jurisdiction in which it is not so
qualified, to subject itself to taxation or other governmental fees and
charges in respect of any jurisdiction to which it is not otherwise
subject or to file a general consent to service of process in any
jurisdiction;
(h) to reasonably assist the Underwriters in arranging for the
Securities to be eligible for clearance and settlement through The
Depository Trust Company ("DTC");
(i) for a period of 45 days from the date of the Prospectus,
not to, directly or indirectly, offer for sale, sell, contract to sell,
sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of, directly or indirectly, or file a
registration statement for, or announce any offer, sale, contract for
sale of or other disposition of any debt securities issued or
guaranteed by any of the Issuers or any of their subsidiaries (other
than the Securities and pursuant to an exchange offer, Iridium's 11
1/4% Senior Notes due 2005), without the prior written consent of the
Underwriters;
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(j) in connection with the offering of the Notes, until CSI on
behalf of the Underwriters shall have notified the Issuers of the
completion of the resale of the Securities, not to, and to cause its
affiliated purchasers (as defined in Regulation M under the Exchange
Act) not to (except for actions taken by the Underwriters whether or
not on behalf of the Issuers), either alone or with one or more other
persons, bid for or purchase, for any account in which it or any of its
affiliated purchasers has a beneficial interest, any Securities, or
attempt to induce any person to purchase any Securities; and not to,
and to cause its affiliated purchasers not to, make bids or purchase
for the purpose of creating actual, or apparent, active trading in or
of raising the price of the Securities; and
(k) to furnish to each of the Underwriters on or prior to the
Closing Date hereof a copy of the independent accountants' report
included in the Registration Statement signed by the accountants
rendering such report.
5. Conditions of Underwriters' Obligations. The respective
obligations of the several Underwriters hereunder are subject to the accuracy,
on and as of the date hereof and the Closing Date, of the representations and
warranties of the Issuers contained herein, to the accuracy of the statements of
the Issuers and their officers made in any certificates delivered pursuant
hereto, to the performance by the Issuers of their obligations hereunder, and to
each of the following additional terms and conditions:
(a) If the Effective Time is not prior to the execution and
delivery of this Agreement, the Registration Statement shall have
become effective and the Indenture shall have been qualified under the
Trust Indenture Act, and the Underwriters shall have received notice
thereof, not later than (i) 6:00 p.m. New York Time on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 p.m. New York City time on such date or
(ii) 12:00 noon New York City time on the business day following the
day on which the offering price was determined if such determination
occurred after 3:00 p.m. New York City time on such date. If the
Effective Time is prior to the execution and delivery of this
Agreement, the Prospectus shall have been timely filed with the
Commission in accordance with Section 4(a) of this Agreement. Prior to
the Closing Date, no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus
or otherwise shall have been complied with to the reasonable
satisfaction of the Underwriters.
(b) The Prospectus (and any amendments or supplements thereto)
shall have been printed and copies distributed to the Underwriters as
promptly as practicable on or following the date of this Agreement or
at such other date and time as to which the Underwriters may agree.
(c) None of the Underwriters shall have discovered and
disclosed to Iridium on or prior to the Closing Date that the
Prospectus, as amended or supplemented, contains an untrue statement of
a fact which, in the opinion of counsel for the Underwriters specified
herein, is material or omits to state any fact which, in the opinion of
such counsel, is material and is required to be stated therein or is
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) All corporate proceedings and other legal matters incident
to the authorization, form and validity of each of the Transaction
Documents and the transactions contemplated thereby, shall be
satisfactory in all material respects to the Underwriters, and the
Issuers shall have furnished to the Underwriters all documents and
information that they or their counsel may reasonably request to enable
them to pass upon such matters.
(e) Xxxxxxxx & Xxxxxxxx shall have furnished to the
Underwriters their written opinion and letter, as counsel to the
Issuers, addressed to the Underwriters and dated the Closing Date, in
form and substance reasonably satisfactory to the Underwriters,
substantially to the effect set forth in Annex A hereto.
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(f) Xxxxxxx & Xxxxxxx LLP shall have furnished to the
Underwriters their written opinion, as regulatory counsel for Space
System License, Inc. as FCC license holder, addressed to the
Underwriters and dated the Closing Date, in form and substance
reasonably satisfactory to the Underwriters, substantially to the
effect set forth in Annex B hereto.
(g) X. Xxxxxx Xxxxxx, Esq. shall have furnished to the
Underwriters his written opinion, as General Counsel of Iridium,
addressed to the Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriters, substantially to
the effect set forth in Annex C hereto.
(h) The Underwriters shall have received from Milbank, Tweed,
Xxxxxx & XxXxxx, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to such matters as the
Underwriters may reasonably require, and the Issuers shall have
furnished to such counsel such documents and information as they
reasonably request for the purpose of enabling them to pass upon such
matters.
(i) The Underwriters shall have received from Goldberg,
Xxxxxx, Xxxxxx & Xxxxxx, regulatory counsel for the Underwriters, such
opinion or opinions, dated the Closing Date, with respect to such
matters as the Underwriters may reasonably require, and the Issuers
shall have furnished to such counsel such documents and information as
they reasonably request for the purpose of enabling them to pass upon
such matters.
(j) The Issuers shall have furnished to the Underwriters a
letter (the "Initial Letter") of KPMG Peat Marwick LLP, addressed to
the Underwriters and dated the date hereof, containing statements and
information of the type ordinarily included in accountants "comfort
letters" with respect to the financial statements and certain financial
information contained in the Prospectus.
(k) The Issuers shall have furnished to the Underwriters a
letter (the "Bring-Down Letter") of KPMG Peat Marwick LLP, addressed to
the Underwriters and dated the Closing Date (i) confirming that they
are independent public accountants with respect to the Issuers within
the meaning of the Securities Act and the Rules and Regulations
thereunder, (ii) stating, as of the date of the Bring-Down Letter (or,
with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given
in the Prospectus, as of a date not more than three business days prior
to the date of the Bring-Down Letter), that the conclusions and
findings of such accountants with respect to the financial information
and other matters covered by the Initial Letter are accurate and (iii)
confirming in all material respects the conclusions and findings set
forth in the Initial Letter.
(l) As of the Closing Date, there shall not have been, since
the date hereof or since the respective dates as of which information
is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs
or business prospects of Iridium, whether or not arising in the
ordinary course of business, and the Underwriters shall have received a
certificate of the President or a Vice President of Iridium and of the
chief financial or chief accounting officer of Iridium, dated as of
Closing Date, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 2
hereof are true and correct with the same force and effect as though
expressly made at and as of Closing Date, (iii) each of the Issuers, as
the case may be, has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to
Closing Date pursuant hereto and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and, to the
best of their knowledge, no proceedings for that purpose has been
instituted or are pending or are contemplated by the Commission. Launch
delays and satellite anomalies shall not be covered by this condition.
(m) The Underwriters shall have received a certificate, dated
the Closing Date, of the President or Vice President of Motorola, in
form and substance satisfactory to counsel for the Underwriters, as to
the accuracy of the statements attributed to Motorola in the
Prospectus, and to such other matters relating to Motorola as counsel
for the Underwriters may reasonably request, substantially to the
effect set forth in Annex D hereto.
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(n) The Indenture shall have been duly executed and delivered
by the Note Issuers, the Guarantor Subsidiaries and the Trustee, and
the Notes shall have been duly executed and delivered by the Issuers
and duly authenticated by the Trustee.
(o) If any event shall have occurred that requires the Issuers
under Section 4(e) to prepare an amendment or supplement to the
Prospectus, such amendment or supplement shall have been prepared, the
Underwriters shall have been given a reasonable opportunity to comment
thereon, and copies thereof shall have been delivered to the
Underwriters reasonably in advance of the Closing Date.
(p) Subsequent to the execution and delivery of this Agreement
or, if earlier, the dates as of which information is given in the
Registration Statement (exclusive of any amendment thereto) and
Prospectus (exclusive of any amendment or supplement thereto), there
shall not have been any material adverse change in the condition
(financial or otherwise), or in the earnings, business affairs or
business prospects of Iridium, whether or not arising in the ordinary
course of business, the effect of which, in any such case described
above, is, in the judgment of the Underwriters, so material and adverse
as to make it impracticable or inadvisable to proceed with the sale or
delivery of the Securities on the terms and in the manner contemplated
by this Agreement and the Prospectus (exclusive of any amendment or
supplement thereto).
(q) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency or body which would, as of the Closing Date,
prevent the issuance or sale of the Securities, as contemplated by the
Prospectus; and no injunction, restraining order or order of any other
nature by any federal or state court of competent jurisdiction shall
have been issued as of the Closing Date which would prevent the
issuance or sale as contemplated by the Prospectus of the Securities.
(r) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the
Securities by Xxxxx'x Investors Service Inc. or Standard and Poor's
Ratings Group and (ii) no such organization shall have publicly
announced that it has under surveillance or review (other than an
announcement with positive implications of a possible upgrading), its
rating of the Securities.
(s) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange, the Nasdaq National Market System or the over-the-counter
market shall have been suspended or materially limited, or minimum
prices shall have been established on any such exchange or market by
the Commission or the Nasdaq National Market by any such exchange or by
any other regulatory body or governmental authority having
jurisdiction, or trading in any securities of the Issuers on any
exchange or in the over-the-counter market shall have been suspended or
(ii) any moratorium on commercial banking activities shall have been
declared by federal or New York state authorities or (iii) an outbreak
or escalation of hostilities or a declaration by the United States of a
national emergency or war or a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) the effect of which, in the case of this clause (iii),
is, in the judgment of the Underwriters, so material and adverse as to
make it impracticable to market the Securities or to enforce contracts
for the sale of the Securities on the terms and in the manner
contemplated by this Agreement and in the Prospectus.
6. Effectiveness and Termination. This Agreement shall become
effective upon the later of (i) when the Underwriters and the Issuers shall have
received notification of the effectiveness of the Registration Statement or (ii)
the execution of this Agreement. The obligations of the Underwriters hereunder
may be terminated by the Underwriters by notice given to and received by Issuers
prior to delivery of and payment for the Securities if, prior to that time, any
of the events described in Section 5(p), (q), (r) or (s) shall have occurred and
be continuing.
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7. Defaulting Underwriters. (a) If, on the Closing Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting Underwriters shall be obligated to purchase the
principal amount of the Notes (and the related Guarantees) which the defaulting
Underwriter agreed but failed to purchase in the respective proportions which
the principal amount of Notes set forth opposite the name of each remaining
non-defaulting Underwriter in Schedule 1 bears to the aggregate principal amount
of Notes set forth opposite the names of all the remaining non-defaulting
Underwriters in Schedule 1 hereto; provided, however, that the remaining
non-defaulting Underwriters shall not be obligated to purchase any of the Notes
on such Closing Date if the total principal amount of Notes which the defaulting
Underwriters agreed but failed to purchase on such date exceeds one-eleventh of
the aggregate principal amount of Notes to be purchased on such Closing Date and
any remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the principal amount of Notes which it agreed to purchase on such
Closing Date. If the foregoing maximums are exceeded, the remaining
non-defaulting Underwriters or those other purchasers satisfactory to the
Underwriters who so agree, shall have the right, but shall not be obligated, to
purchase, in such proportion as may be agreed upon among them, all the Notes to
be purchased on such Closing Date.
(b) If, after giving effect to any arrangements for the
purchase of the Notes of a defaulting Underwriter by the non-defaulting
Underwriters as provided in subsection (a) above, the aggregate
principal amount of such Notes which remain unpurchased exceeds
one-eleventh of the aggregate principal amount of all the Notes, then
this Agreement shall thereupon terminate without liability on the part
of any Underwriter or the Issuers, except for the expenses to be borne
by the Issuers as provided in Section 8 and 12 and the indemnity and
contribution agreement in Sections 9 and 10, but nothing herein shall
relieve a defaulting Underwriter from liability for its default. If
other Underwriters are obligated or agree to purchase the Notes of a
defaulting or withdrawing Underwriters, either the non-defaulting
Underwriters or the Note Issuers may postpone the Closing Date for up
to seven full business days in order to effect any changes that in the
opinion of counsel for the Note Issuers or counsel for the Underwriters
may be necessary in the Registration Statement and the Prospectus or in
any other document or arrangement, and the Note Issuers agree to
promptly prepare any amendment or supplement to the Registration
Statement and the Prospectus that effects any such changes.
8. Reimbursement of Underwriters' Expenses. If this Agreement
shall have been terminated pursuant to Section 6 or due to the failure of the
Issuers to fulfill a condition stated in Section 5, the Issuers shall reimburse
the Underwriters for such out-of-pocket expenses (including reasonable fees and
disbursements of counsel) as shall have been reasonably incurred by the
Underwriters in connection with this Agreement and the proposed public offering
and sale of the Notes. If this Agreement is terminated pursuant to Section 7 by
reason of the default of one or more of the Underwriters, the Issuers shall not
be obligated to reimburse any Underwriter on account of such expenses.
9. Indemnification. (a) The Issuers shall, jointly and
severally, indemnify and hold harmless each Underwriter and its affiliates, and
each person, if any, who controls any Underwriter within the meaning of the
Securities Act or the Exchange Act (collectively referred to for purposes of
this Section 9(a) and Section 10 as an Underwriter), from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof
(including, without limitation, any loss, claim, damage, liability or action
relating to purchases and sales of the Securities), to which that Underwriter
may become subject, whether commenced or threatened, under the Securities Act,
the Exchange Act, any other federal or state statutory law or regulation, at
common law or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in the Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or (ii) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and shall reimburse each Underwriter promptly upon demand for any
legal or other expenses reasonably incurred by that Underwriter in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Issuers shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in conformity
with any Underwriters' Information; and provided, further, that with respect to
any such untrue statement in or omission from any Preliminary Prospectus, or
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any Prospectus that has been amended or supplemented to reflect an event
subsequent to the effective date of the Registration Statement, the indemnity
agreement contained in this Section 9(a) shall not inure to the benefit of any
such Underwriter to the extent that the sale to the person asserting any such
loss, claim, damage, liability or action was an initial resale by such
Underwriter and any such loss, claim, damage, liability or action of or with
respect to such Underwriter results from the fact that both (A) to the extent
required by applicable law, a copy of the Prospectus was not sent or given to
such person at or prior to the written confirmation of the sale of such Notes to
such person and (B) the untrue statement in or omission from such Preliminiary
Prospectus, or any Prospectus that has been amended or supplemented to reflect
an event subsequent to the effective date of the Registration Statement, was
corrected in the Prospectus unless, in either case, such failure to deliver the
Prospectus was a result of non-compliance by the Company with Section 4(c).
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Issuers and their respective
affiliates, and each person, if any, who controls the Issuers within
the meaning of the Securities Act or the Exchange Act (collectively
referred to for purposes of this Section 9(b) and Section 10 as the
Issuers), from and against any loss, claim, damage or liability, joint
or several, or any action in respect thereof, to which the Issuers may
become subject, whether commenced or threatened, under the Securities
Act, the Exchange Act, any other federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or
the Prospectus or in any amendment or supplement thereto or (ii) the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with any Underwriters'
Information, and shall reimburse the Issuers for any legal or other
expenses reasonably incurred by the Issuers in connection with
investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party pursuant to Section 9(a) or 9(b), notify
the indemnifying party in writing of the claim or the commencement of
that action; provided, however, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have under this Section 9 except to the extent that it has been
materially prejudiced by such failure; and, provided, further, that the
failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than
under this Section 9. If any such claim or action shall be brought
against an indemnified party, and it shall notify the indemnifying
party thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under
this Section 9 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof; provided,
however, that an indemnified party shall have the right to employ its
own counsel in any such action, but the fees, expenses and other
charges of such counsel for the indemnified party will be at the
expense of such indemnified party unless (1) the employment of counsel
by the indemnified party has been authorized in writing by the
indemnifying party, (2) the indemnified party has reasonably concluded
(based upon advice of independent counsel to the indemnified party)
that there may be legal defenses available to it or other indemnified
parties that are different from or in addition to those available to
the indemnifying party, (3) a conflict or potential conflict exists
(based upon advice of independent counsel to the indemnified party)
between the indemnified party and the indemnifying party (in which case
the indemnifying party will not have the right to direct the defense of
such action on behalf of the indemnified party) or (4) the indemnifying
party has not in fact employed counsel reasonably satisfactory to the
indemnified party to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and
other charges of counsel will be at the expense of the indemnifying
party or parties. It is understood that the indemnifying
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party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the
reasonable fees, disbursements and other charges of more than one
separate firm of attorneys (in addition to any local counsel) at any
one time for all such indemnified party or parties. Each indemnified
party, as a condition of the indemnity agreements contained in Sections
9(a) and 9(b), shall use all reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any action
effected without its written consent. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which
any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such
proceeding.
10. Contribution. If the indemnification provided for in
Section 9 is unavailable or insufficient to hold harmless an indemnified party
under Section 9(a) or 9(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Issuers on the one hand and the
Underwriters on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Issuers on
the one hand and the Underwriters on the other with respect to the statements or
omissions that resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Issuers on the one hand and the Underwriters
on the other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Securities
purchased under this Agreement (before deducting expenses) received by or on
behalf of the Issuers without duplication, on the one hand, and the total
underwriting discounts and commissions received by the Underwriters with respect
to the Securities purchased under this Agreement, on the other, bear to the
total gross proceeds from the sale of the Securities under this Agreement, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to the Issuers or information
supplied by the Issuers on the one hand or to any Underwriters' Information on
the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Issuers and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 10 were to be determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 10
shall be deemed to include, for purposes of this Section 10, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending or preparing to defend any such action or claim.
Notwithstanding the provisions of this Section 10, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities purchased by it and resold to investors were
offered to investors exceeds the amount of any damages which such Underwriter
has otherwise paid or become liable to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Section 10 are several in proportion to their respective
purchase obligations and not joint.
11. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the Issuers
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except as provided in
Sections 9 and 10 with respect to affiliates and controlling persons of the
Issuers and the Underwriters. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this Section
11, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
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12. Expenses. The Issuers agree with the Underwriters to pay
(a) the costs incident to the authorization, issuance, sale, preparation and
delivery of the Securities and any taxes payable in that connection; (b) the
costs incident to the preparation, printing and filing under the Securities Act
of the Registration Statement and amendments and exhibits thereto, (c) the costs
of printing and distributing the Registration Statement as originally filed and
each exhibit thereto and any post-effective amendments thereof (including, in
each case, exhibits), any Preliminary Prospectus, the Prospectus and any
amendments or supplements thereto all as provided in this Agreement; (d) the
costs of reproducing and distributing each of the Transaction Documents; (e) the
costs incident to the preparation, printing and delivery of the certificates
evidencing the Securities, including stamp duties and transfer taxes, if any,
payable upon issuance of the Securities; (f) the fees and expenses of the
Issuers' counsel and independent accountants; (g) the fees and expenses of
qualifying the Securities under the securities laws of the several jurisdictions
as provided in Section 4(g) and of preparing, printing and distributing Blue Sky
Memoranda (including related fees and expenses of counsel for the Underwriters);
(h) any fees charged by rating agencies for rating the Securities; (i) the fees
and expenses of the Trustee and any paying agents (including related fees and
expenses of any counsel to such parties); (j) the filing fees incident to
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Securities; and (k) all expenses and
application fees incurred in connection with the approval of the Securities for
book-entry transfer by DTC. Except as provided in this Section 12 and Section 8,
the Underwriters shall pay their own costs and expenses.
13. Survival. The respective indemnities, rights of
contribution, representations, warranties and agreements of the Issuers and the
Underwriters contained in this Agreement or made by or on behalf of the Issuers
or the Underwriters pursuant to this Agreement or any certificate delivered
pursuant hereto shall survive the delivery of and payment for the Securities and
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
of them or any of their respective affiliates, officers, directors, employees,
representatives, agents or controlling persons.
14. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or
sent by mail or telecopy transmission to Chase Securities Inc., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxxx Xxxxxxx
(telecopier no.: (000) 000-0000); or
(b) if to the Note Issuers or Guarantor Subsidiaries,
shall be delivered or sent by mail or telecopy transmission to c/o
Iridium Operating LLC at 0000 Xxx Xxxxxx X.X., Xxxxxxxxxx, X.X. 00000,
Attention: General Counsel (telecopier no.: 202-408-3761);
provided that any notice to an Underwriter or Issuer pursuant
to Section 9(c) shall also be delivered or sent by mail to such Underwriter or
Issuer at its address set forth on the signature page hereof. Any such
statements, requests, notices or agreements shall take effect at the time of
receipt thereof. The Issuers shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the Underwriters by CSI.
15. Definition of Terms. For purposes of this Agreement, (a)
the term "business day" means any day on which the New York Stock Exchange, Inc.
is open for trading, (b) the term "subsidiary" has the meaning set forth in the
"Description of Notes" section of the Prospectus and (c) except where otherwise
expressly provided, the term "affiliate" has the meaning set forth in Rule 405
of the Rules and Regulations.
16. Underwriters' Information. The parties hereto acknowledge
and agree that, for all purposes of this Agreement, the Underwriters'
Information consists solely of the following information in any Preliminary
Prospectus and Prospectus: (i) the last paragraph on the front cover page
concerning the terms of the offering by the Underwriters; (ii) the legend on the
first inside cover page concerning over-allotment and trading activities by the
Underwriters; and (iii) the statements concerning the Underwriters contained in
the ___ paragraph under the heading "Underwriting."
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17. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
18. Counterparts. This Agreement may be executed in one or
more counterparts (which may include counterparts delivered by telecopier) and,
if executed in more than one counterpart, the executed counterparts shall each
be deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
19. Amendments. No amendment or waiver of any provision of
this Agreement, nor any consent or approval to any departure therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto.
20. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
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If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Issuers and the several
Underwriters in accordance with its terms.
Very truly yours,
IRIDIUM OPERATING LLC
By
-------------------------------
Name:
Title:
IRIDIUM CAPITAL CORPORATION
By
-------------------------------
Name:
Title:
IRIDIUM ROAMING LLC
By
-------------------------------
Name:
Title:
IRIDIUM IP LLC
By
-------------------------------
Name:
Title:
IRIDIUM FACILITIES CORPORATION
By
-------------------------------
Name:
Title:
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Accepted:
CHASE SECURITIES INC.
By
----------------------------
Authorized Signatory
Address for notices pursuant to Section 9(c):
0 Xxxxx Xxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 10081
Attention: Legal Department
BARCLAYS CAPITAL INC.
By
----------------------------
Authorized Signatory
Address for notices pursuant to Section 9(c):
[_________________]
XXXXXXX LYNCH, XXXXXX, XXXXXX
& XXXXX INCORPORATED
By
----------------------------
Authorized Signatory
Address for notices pursuant to Section 9(c):
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: X. Xxxx Xxxxxxx
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SCHEDULE 1
Underwriters Principal Amount of Notes
Chase Securities Inc.
Barclays Capital Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated
-------------------
Total $350,000,000
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ANNEX A
FORM OF OPINION AND LETTER OF
XXXXXXXX & XXXXXXXX TO BE
DELIVERED PURSUANT TO
SECTION 5(e)
22
ANNEX B
FORM OF OPINION OF XXXXXXX & XXXXXXX LLP
TO BE DELIVERED PURSUANT TO
SECTION 5(f)
23
ANNEX C
FORM OF OPINION OF GENERAL COUNSEL OF IRIDIUM
TO BE DELIVERED PURSUANT TO
SECTION 5(g)
24
ANNEX D
FORM OF CERTIFICATE OF
VICE PRESIDENT OF MOTOROLA
TO BE DELIVERED PURSUANT TO
SECTION 5(m)
