1
EXHIBIT 10.32
(EXHIBIT B TO THE CREDIT AGREEMENT)
PLEDGE AND SECURITY AGREEMENT
PLEDGE AND SECURITY AGREEMENT dated as of [___________, 199_]
between: IRIDIUM OPERATING LLC, a limited liability company duly organized and
validly existing under the laws of the State of Delaware (the "Company"); each
of the Subsidiaries of the Company identified under the caption "SUBSIDIARY
GUARANTORS" on the signature pages hereof (individually, a "Subsidiary
Guarantor" and, collectively, the "Subsidiary Guarantors" and, together with the
Company, the "Obligors"); and THE CHASE MANHATTAN BANK, as collateral agent
hereunder for the lenders party to the Credit Agreement referred to below (in
such capacity, together with its successors in such capacity, the "Collateral
Agent").
The Company, the Subsidiary Guarantors, certain lenders, the Global
Arrangers, the Collateral Agent, The Chase Manhattan Bank, as the Administrative
Agent, and Barclays Capital, the investment banking division of Barclays Bank
PLC, as the Documentation Agent, are parties to a Credit Agreement dated as of
December 19, 1997 (as modified, supplemented or otherwise modified and in effect
from time to time, the "Credit Agreement"), providing, subject to the terms and
conditions thereof, for loans to be made by said lenders to the Company in an
aggregate principal amount not exceeding $1,000,000,000.
To induce said lenders to enter into the Credit Agreement and to
extend credit thereunder, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, each Obligor has
agreed to pledge and grant a security interest in the Collateral (as hereinafter
defined) as security for the Secured Obligations (as so defined). Accordingly,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. Capitalized terms used but not defined
herein shall have their respective meanings in the Credit Agreement. In
addition, as used herein:
"Accounts" has the meaning assigned to such term in paragraph (g) of
Article III.
"Assigned Agreement" has the meaning assigned to such term in
paragraph (e) of Article III.
"Collateral" has the meaning assigned to such term in Article III.
Security Agreement
2
- 2 -
"Copyright Collateral" means all Copyrights, whether now owned or
hereafter acquired by any Obligor, including each Copyright identified in
Annex 2.
"Copyrights" has the meaning assigned to such term in paragraph (o)
of Article III.
"Documents" has the meaning assigned to such term in paragraph (n)
of Article III.
"Equipment" has the meaning assigned to such term in paragraph (j)
of Article III.
"Hawaiian TTAC License" means the License Agreement dated December
1, 1993 between the Estate of Xxxxx Xxxxxxxx, as Licensor, and Motorola,
Inc., as Licensee, relating to all that certain real property consisting
of approximately 250,034 square feet or 5.74 acres, said property being a
portion of Lot 46, comprising 118, 207 acres, located in Kaunala, District
of Koolauloa, City and County of Honolulu, State of Hawaii, as shown on
Map 7, filed in the Office of the Assistant Registrar of the land court of
the Sate of Hawaii with Land Court application No. 1095 of the Trustees
under the Will and of the Estate of Xxxxx Xxxxxxxx, deceased, being a
portion of the land(s) described in Certificate of Title No. 17,854 issued
to the Trustees under the Will and of the Estate of Xxxxx Xxxxxxxx,
deceased.
"Instruments" has the meaning assigned to such term in paragraph (h)
of Article III.
"Intellectual Property" means, collectively, all Copyright
Collateral, all Patent Collateral, all Trademark Collateral and all of the
Collateral referred to in paragraphs (r), (s) and (u) of Article III.
"Inventory" has the meaning assigned to such term in paragraph (l)
of Article III.
"Iridium Clearing Account" has the meaning assigned to such term in
the Depositary Agreement.
"Patent Collateral" means all Patents, whether now owned or
hereafter acquired by any Obligor, including each Patent identified in
Annex 3.
"Patents" has the meaning assigned to such term in paragraph (p) of
Article III.
Security Agreement
3
- 3 -
"Pledged Collateral" has the meaning assigned to such term in
paragraph (d) of Article III.
"Pledged Interests" has the meaning assigned to such term in
paragraph (b) of Article III.
"Pledged Stock" has the meaning assigned to such term in paragraph
(a) of Article III.
"Rolling Stock" has the meaning assigned to such term in paragraph
(k) of Article III.
"Secured Obligations" means, collectively, (a) in the case of the
Company, the principal of and interest on the Loans, all other amounts
from time to time owing to the Lenders or the Agents by the Company under
the Credit Documents (including, without limitation, hereunder) and (b) in
the case of each Subsidiary Guarantor, all obligations of such Subsidiary
Guarantor hereunder and under the Subsidiary Guarantee Agreement.
"Secured Parties" means, collectively, the Lenders, the Collateral
Agent and the other Agents.
"Trademark Collateral" means all Trademarks, whether now owned or
hereafter acquired by any Obligor, including each Trademark identified in
Annex 4. Notwithstanding the foregoing, the Trademark Collateral does not
and shall not include any Trademark which would be rendered invalid,
abandoned, void or unenforceable by reason of its being included as part
of the Trademark Collateral.
"Trademarks" has the meaning assigned to such term in paragraph (q)
of Article III.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect from time to time in the State of New York.
SECTION 1.02. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement,
Security Agreement
4
- 4 -
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified, including an amendment and restatement
thereof, but subject to any restrictions on such amendments, supplements or
modifications set forth herein, (b) any reference herein to any Person shall be
construed to include such Person's successors and assigns or, in the case of any
Governmental Authority, any entity succeeding to any or all of the functions of
such Governmental Authority, (c) the words "herein", "hereof" and "hereunder",
and words of similar import, shall be construed to refer to this Agreement in
its entirety and not to any particular provision hereof, (d) all references
herein to Sections and Annexes shall be construed to refer to Sections of, and
Annexes to, this Agreement and (e) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Each Obligor represents and warrants to the Secured Parties that:
(a) Such Obligor is the sole beneficial owner of the Collateral in
which it purports to grant a security interest pursuant to Article III and
no Lien exists or will exist upon such Collateral at any time (and no
right or option to acquire the same exists in favor of any other Person),
except for Liens permitted under Section 7.02 of the Credit Agreement and
except for the pledge and security interest in favor of the Collateral
Agent for the benefit of the Lenders created or provided for herein, which
pledge and security interest constitute a first priority perfected pledge
and security interest in and to all of such Collateral (other than
Intellectual Property registered or otherwise located outside of the
United States of America and except as permitted under Section 7.02 of the
Credit Agreement).
(b) Each of the Pledged Stock and the Pledged Interests identified
under the name of such Obligor in Annex 1 is, and all other Pledged Stock
and Pledged Interests in which such Obligor shall hereafter grant a
security interest pursuant to Article III will be, duly authorized,
validly existing, fully paid and non-assessable and none of the Pledged
Collateral is or will be subject to any contractual restriction, or any
restriction under the charter, by-laws or other organizational documents
of the respective issuer thereof, upon the transfer of such Pledged
Collateral (except for any such restriction contained herein or in the
Credit Agreement or as required by law).
Security Agreement
5
- 5 -
(c) The Pledged Stock and the Pledged Interests identified in Annex
1 constitutes all (or, in the case of any Foreign Subsidiary, 66%) of the
issued and outstanding ownership interests of the issuer thereof on the
date hereof (whether or not registered in the name of any Obligor) and
said Annex 1 correctly identifies, as at the date hereof, the respective
issuers thereof, the type or class and par value of such ownership
interests (if any), the respective number of shares or units thereof, and
registered owners thereof.
(d) Annexes 2, 3 and 4, respectively, set forth under the name of
such Obligor a complete and correct list of all Copyrights, Patents and
Trademarks owned by such Obligor on the date hereof; except pursuant to
licenses and other user agreements entered into by such Obligor in the
ordinary course of business, that are listed in Annex 5, such Obligor owns
and possesses the right to use, and has done nothing to authorize or
enable any other Person to use, any Copyright, Patent or Trademark listed
in said Annexes 2, 3 and 4, and all registrations listed in said Annexes
2, 3 and 4 are valid and in full force and effect; except as may be set
forth in said Annex 5, such Obligor owns and possesses the right to use
all Copyrights, Patents and Trademarks.
(e) Annex 5 sets forth a complete and correct list of all material
licenses and other user agreements included in the Intellectual Property
on the date hereof.
(f) To such Obligor's knowledge, (i) except as set forth in Annex 5,
there is no violation by others of any right of such Obligor with respect
to any Copyright, Patent or Trademark listed in Annexes 2, 3 and 4,
respectively, under the name of such Obligor and (ii) such Obligor is not
infringing in any respect upon any Copyright, Patent or Trademark of any
other Person; and no proceedings have been instituted or are pending
against such Obligor or, to such Obligor's knowledge, threatened, and no
claim against such Obligor has been received by such Obligor, alleging any
such violation, except as may be set forth in said Annex 5.
(g) Such Obligor does not own any Trademarks registered in the
United States of America to which the last sentence of the definition of
Trademark Collateral applies.
ARTICLE III
COLLATERAL
As collateral security for the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of the Secured
Obligations, each Obligor hereby pledges, assigns, hypothecates and transfers to
the Collateral Agent for the equal and ratable benefit of the
Security Agreement
6
- 6 -
Secured Parties, and grants to the Collateral Agent for the equal and ratable
benefit of the Secured Parties a Lien on and security interest in, all of such
Obligor's right, title and interest in the following property, whether now owned
by such Obligor or hereafter acquired and whether now existing or hereafter
coming into existence (all being collectively referred to herein as
"Collateral"):
(a) all shares of capital stock or other evidence of beneficial
interest of whatever class of any corporation, including, without
limitation, the shares of capital stock of each corporation identified in
Annex 1, now or hereafter owned by such Obligor, in each case together
with the certificates evidencing the same, but in the case of a Foreign
Subsidiary only to the extent set forth in Section 4.04(a)(i)
(collectively, the "Pledged Stock");
(b) all membership or other ownership interests of such Obligor in
any limited liability company, all limited partnership interests in any
limited partnership, all general partnership interests in any general
partnership, all joint venture interests in any joint venture and all
other equity or ownership interests of any Person of whatever kind or
nature, including, without limitation, the membership interests of the
limited liability companies identified in Annex 1, now or hereafter owned
by such Obligor, in each case together with the certificates (if any)
evidencing the same, including, without limitation, all of the right,
title and interest of such Obligor as a member, partner or other equity
holder in, to and under any agreement or other instrument organizing or
forming such entity, as said agreement or instrument may be amended,
supplemented or modified and in effect from time to time, and (i) all
rights of such Obligor to receive moneys due but unpaid and to become due
under or pursuant to such agreement or instrument, (ii) all rights of such
Obligor to participate in the operation or management of such entity and
to take actions or consent to actions in accordance with the provisions of
such agreement or instrument, (iii) all rights of such Obligor to property
of such entity, (iv) all rights of such Obligor to receive proceeds of any
insurance, bond, indemnity, warranty or guaranty with respect to such
agreement or instrument, (v) all claims of such Obligor for damages
arising out of or for breach of or default under such agreement or
instrument and (vi) all rights of such Obligor to terminate, amend,
supplement, modify or waive performance under such agreement or
instrument, to perform thereunder and to compel performance and otherwise
to exercise all remedies thereunder, but in the case of a Foreign
Subsidiary only to the extent set forth in Section 4.04(a)(i)
(collectively, the "Pledged Interests"), and any right, title and interest
of the Company in, to and under the Company LLC Agreement;
(c) all shares, interests, securities, moneys or other property
representing a dividend on any of the Pledged Stock or the Pledged
Interests, or representing a distribution or return of capital upon or in
respect of the Pledged Stock or the Pledged
Security Agreement
7
- 7 -
Interests, or resulting from a split-up, revision, reclassification or
other like change of the Pledged Stock or the Pledged Interests or
otherwise received in exchange therefor, and all options, warrants and
similar rights issued to the holders of, or otherwise in respect of, the
Pledged Stock or the Pledged Interests;
(d) without affecting the obligations of such Obligor under any
provision prohibiting such action hereunder or under the Credit Agreement,
in the event of any consolidation or merger of a Subsidiary in which one
of the Obligors is not the surviving entity, all ownership interests of
whatever class owned by such Obligor of the successor entity formed by or
resulting from such consolidation or merger (the Pledged Stock and the
Pledged Interests, together with all shares, interests, securities, moneys
or property as may from time to time be pledged hereunder pursuant to
clause (a), (b) or (c) above and this clause (d) being herein, and the
proceeds of and to any such property and, to the extent related to any
such property or such proceeds, all books, correspondence, credit files,
records, invoices and other papers, collectively called the "Pledged
Collateral");
(e) all contracts and agreements to which such Obligor is a party
and other similar consensual obligations owed to such Obligor including,
without limitation, the following:
(i) the Space System Contract;
(ii) the O&M Contract;
(iii) the Terrestrial Network Development Contract;
(iv) each Gateway Authorization Agreement;
(v) the IBSS Agreement; and
(vi) the Management Services Agreement.
(said contracts, agreements and obligations, as so amended, supplemented
renewed or modified, including any such replacement or substitution
contracts, agreements and obligations, being, individually, an "Assigned
Agreement", and, collectively, the "Assigned Agreements"), including,
without limitation, (1) all rights of such Obligor to receive moneys due
and to become due under or pursuant to the Assigned Agreements, (2) all
rights to receive property, assets, services or other performance
thereunder, (3) all rights of such Obligor to receive return of any
premiums for or proceeds of any insurance,
Security Agreement
8
- 8 -
payment and/or performance bond, indemnity, warranty or guaranty with
respect to the Assigned Agreements or to receive condemnation proceeds
thereof, (4) all claims of such Obligor for damages arising out of or for
breach of or default under the Assigned Agreements and (5) all rights of
such Obligor to terminate, amend, supplement, modify or waive performance
under the Assigned Agreements, to perform thereunder and to compel
performance and otherwise to exercise all remedies thereunder, in each
case as such contract, agreement and obligation may be amended,
supplemented, renewed or otherwise modified, including, without
limitation, any agreement, contract or document replacing or substituting
for such contract, agreement or obligation from time to time;
(f) all Government Approvals (including, without limitation, the FCC
License) now or hereafter held in the name, or for the benefit, of the
Company or any of its Subsidiaries, provided that any such Government
Approval which by its terms or by operation of law would become void,
voidable, terminable or revocable if mortgaged, pledged or assigned
hereunder or if a security interest therein was granted hereunder are
expressly excepted and excluded from the Lien and terms of this Agreement
to the extent necessary so as to avoid such voidness, avoidability,
terminability or revocability, but such security interest does include, to
the maximum extent permitted by law, all rights of such Obligor incident
or appurtenant to such Government Approval and the right of such Obligor
to receive all proceeds derived from or in connection with the sale,
assignment or transfer of such Government Approval;
(g) all accounts and general intangibles (each as defined in the
Uniform Commercial Code) of such Obligor constituting any right of such
Obligor to the payment of money, including, without limitation, all moneys
due and to become due to such Obligor under or in respect of the Assigned
Agreements, Government Approvals, franchises, licenses, permits,
subscriptions or other agreements or at law or in equity (whether or not
earned by performance and whether arising directly or indirectly and
including claims for reimbursement, contribution, indemnity and
subrogation), rights of such Obligor to receive payments from any other
source but excluding the Pledged Collateral, and all tax refunds (such
accounts, general intangibles and moneys due and to become due being
herein called collectively "Accounts");
(h) all instruments, chattel paper or letters of credit (each as
defined in the Uniform Commercial Code) of such Obligor evidencing,
representing, arising from or existing in respect of, relating to,
securing or otherwise supporting the payment of, any of the Accounts,
including (but not limited to) promissory notes, drafts, bills of exchange
and trade acceptances (herein collectively called "Instruments");
Security Agreement
9
- 9 -
(i) all other accounts or general intangibles of such Obligor not
constituting Accounts to the extent not otherwise specifically excluded in
this Article III;
(j) all equipment (as such term is defined in the Uniform Commercial
Code) of such Obligor including, without limitation, all machinery,
apparatus, installation facilities, satellites and other tangible personal
property of such Obligor of any nature whatsoever, wherever located, and
whether on earth or in orbit (herein collectively called "Equipment");
(k) all automobiles, trucks, tractors, trailers and other rolling
stock or moveable personal property, including, without limitation,
rolling stock for which the title thereto is evidenced by a certificate of
title issued by the United States of America or any State thereof which
permits or requires a Lien thereon to be evidenced upon such title (herein
collectively called "Rolling Stock");
(l) all inventory (as such term is defined in the Uniform Commercial
Code) in all of its forms, wherever located (including, without
limitation: (i) spare parts inventory, consumable supplies inventory and
maintenance materials inventory and raw materials and work in progress
therefor, finished goods thereof, and materials used or consumed in the
manufacture or production thereof, (ii) goods in which such Obligor has an
interest in mass or a joint or other interest or right of any kind and
(iii) goods which are returned to or repossessed by such Obligor), and all
accessions thereto and products thereof and documentation therefor (herein
collectively called "Inventory");
(m) all rights, claims and benefits of such Obligor against any
Person arising out of, relating to or in connection with Inventory or
Equipment purchased by such Obligor, including, without limitation, any
such rights, claims or benefits against any Person storing or transporting
such Inventory or Equipment;
(n) all documents of title (as defined in the Uniform Commercial
Code) or other receipts of such Obligor covering, evidencing or
representing Inventory or Equipment (herein collectively called
"Documents");
(o) all copyrights, copyright registrations and applications for
copyright registrations, including, without limitation, all renewals and
extensions thereof, the right to recover for all past, present and future
infringements thereof, and all other rights of any kind whatsoever
accruing thereunder or pertaining thereto (herein collectively called
"Copyrights");
Security Agreement
10
- 10 -
(p) all patents and patent applications, including, without
limitation, the inventions and improvements described and claimed therein
together with the reissues, divisions, continuations, renewals, extensions
and continuations-in-part thereof, all income, royalties, damages and
payments now or hereafter due and/or payable under and with respect
thereto, including, without limitation, damages and payments for all past,
present and future infringements thereof, the right to xxx for past,
present and future infringements thereof, and all rights corresponding
thereto throughout the world (herein collectively called "Patents");
(q) all trade names, trademarks and service marks, logos, trademark
and service xxxx registrations, and applications for trademark and service
xxxx registrations (including, without limitation, all renewals of
trademark and service xxxx registrations, and all rights corresponding
thereto throughout the world, but excluding any such registration that
would be rendered invalid, abandoned, void or unenforceable by reason of
its being included as part of the Collateral), the right to recover for
all past, present and future infringements thereof, all other rights of
any kind whatsoever accruing thereunder or pertaining thereto, together,
in each case, with the product lines and goodwill of the business
connected with the use of, and symbolized by, each such trade name,
trademark and service xxxx (herein collectively called "Trademarks");
(r) all inventions, processes, production methods, proprietary
information, know-how and trade secrets used in or relating to the
Project, and all licenses or user or other agreements granted to such
Obligor with respect to any of the foregoing in each case whether now or
hereafter owned or used including, without limitation, the material
licenses or other agreements with respect to any of the Copyright
Collateral, Patent Collateral or Trademark Collateral listed in Annex 5;
(s) all causes of action, claims and warranties now or hereafter
owned or acquired by such Obligor in respect of any of the items listed in
subsection (r) or (t) of this Article III or any of the Copyright
Collateral, Patent Collateral or Trademark Collateral;
(t) all information, customer lists, identification of suppliers,
data, plans, blueprints, designs, models, recorded knowledge, surveys,
architectural, structural, mechanical and engineering plans and
specifications, studies, reports and drawings, test reports, manuals,
material standards, processing standards, performance standards, catalogs,
computer and automatic machinery software and programs, all accounting
information and all media in which or on which any information or
knowledge or data or records may be recorded or stored and all computer
programs used for the compilation or
Security Agreement
11
- 11 -
printout of such information, knowledge, records or data, prepared by or
on behalf of such Obligor for the Development of the Project or any part
thereof;
(u) the Project Accounts (as such term is defined in the Depositary
Agreement), and all balances in each thereof and all instruments,
certificates and notes in respect of Permitted Investments of such
balances held or maintained from time to time in each thereof;
(v) all other general or special deposit accounts, including any
demand, time, savings, passbook or similar account maintained by such
Obligor with any bank, trust company, savings and loan association, credit
union or similar organization, and all money, cash, securities and other
properties of such Obligor deposited in any such account;
(w) all leases of personal property, whether such Obligor is the
lessor or the lessee thereunder, excluding leases of automobiles, fax
machines, copiers, typewriters and similar office equipment, but
specifically including (except as specifically excluded above in this
clause (w) and regardless of whether such items would constitute office
equipment) computers, computer peripherals, telephone equipment, telephone
switches, and all other types of communications equipment;
(x) all insurance policies (except, in the case of any insurance
policy not required to be maintained under Section 8.01 of the Credit
Agreement, to the extent the transfer or assignment of such insurance
policy would render such insurance policy void), whether owned by or
payable to such Obligor, insuring against any risks whatsoever (including,
without limitation, casualty, property damage, liability and death),
including, without limitation, all such policies required to be maintained
under Section 8.01 of the Credit Agreement with respect to any in-orbit
satellite or other property of such Obligor, all loss proceeds and other
amounts payable to such Obligor thereunder, any indemnity, warranty or
guaranty in respect of the property insured thereby, and all eminent
domain or similar proceeds or awards with respect thereto and all other
rights of such Obligor with respect thereto;
(y) to the extent the same constitutes personal property, the
Hawaiian TTAC License;
(z) all other tangible and intangible personal property and fixtures
of such Obligor (except to the extent expressly excluded above);
Security Agreement
12
- 12 -
(aa) all books, correspondence, credit files, records, invoices,
ledgers and other papers of every kind and nature, including without
limitation all tapes, cards, computer runs and other papers and documents
in the possession or under the control of such Obligor or any computer
bureau or service company from time to time acting for such Obligor; and
(bb) all proceeds, products, offspring, rents, profits, royalties,
revenues, issues, income, benefits, accessions, additions, substitutions
and replacements of and to any of the property of such Obligor described
in the preceding clauses of this Section (including, without limitation,
all causes of action, claims and warranties now or hereafter held by any
Obligor in respect of any of the items listed above).
Notwithstanding anything in this Article III to the contrary, the
Collateral shall not include the Iridium Clearing Account and any cash or other
property held therein or credited thereto from time to time.
ARTICLE IV
REMEDIES
In furtherance of the grant of the pledge and security interest
pursuant to Article III, the Obligors hereby jointly and severally agree with
the Secured Parties as follows:
SECTION 4.01. Delivery and Other Perfection. Each Obligor shall:
(a) if any of the shares, interests, securities, moneys or property
required to be pledged by such Obligor under clauses (a), (b) (c) and (d)
of Article III are received by such Obligor, forthwith either (i) transfer
and deliver to the Collateral Agent such shares or securities so received
by such Obligor (together with the certificates for any such shares and
securities duly endorsed in blank or accompanied by undated stock powers
duly executed in blank), all of which thereafter shall be held by the
Collateral Agent, pursuant to the terms of this Agreement, as part of the
Collateral, (ii) with respect to any Pledged Collateral that is not
evidenced by a certificate, execute and deliver written instructions to
the issuer thereof to register the Lien created hereunder in such Pledged
Collateral in the registration books maintained by such issuer for such
purpose and cause the respective Obligor to execute and deliver to the
Collateral Agent a written confirmation to the effect that the Lien
created hereunder in such Pledged Collateral has been duly registered in
such registration books, all in form and substance satisfactory to the
Collateral Agent or (iii) take such other action as the Collateral Agent
shall deem necessary or appropriate to
Security Agreement
13
- 13 -
duly perfect the Lien created hereunder in such shares, interests,
securities, moneys or property in said clauses (a), (b), (c) and (d);
(b) deliver and pledge to the Collateral Agent any and all
Instruments, endorsed and/or accompanied by such instruments of assignment
and transfer in such form and substance as the Collateral Agent may
reasonably request; provided that so long as no Event of Default shall
have occurred and be continuing, such Obligor may retain for collection in
the ordinary course any Instruments, Accounts or General Intangibles
received by such Obligor and the Collateral Agent shall, promptly upon
request of such Obligor through the Company, make appropriate arrangements
for making any Instrument pledged by such Obligor available to such
Obligor for purposes of presentation, collection or renewal (any such
arrangement to be effected, to the extent reasonably deemed appropriate by
the Collateral Agent, against a trust receipt or like document);
(c) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that
may be necessary or desirable (in the judgment of the Collateral Agent) to
create, preserve, perfect or validate the security interest granted
pursuant hereto or to enable the Collateral Agent to exercise and enforce
its rights hereunder with respect to such pledge and security interest (it
being understood that the provisions of this Section will apply to all
Collateral, whether personal property or real property, whether tangible
or intangible, and wherever located and whenever acquired, including,
without limitation, Collateral located outside the United States or in
space), including, without limitation, causing any or all of the Pledged
Collateral to be transferred of record into the name of the Collateral
Agent or its nominee (and the Collateral Agent agrees that if any Pledged
Collateral is transferred into its name or the name of its nominee, the
Collateral Agent will thereafter promptly give to the respective Obligor
copies of any notices and communications received by it with respect to
the Pledged Collateral pledged by such Obligor hereunder), provided that
notices to account debtors [or unaffiliated parties] in respect of any
Accounts, Instruments or other Collateral referred to in clause (i) of
Article III shall be subject to the provisions of clause (h) below;
(d) keep full and accurate books and records in accordance with
generally accepted business practices relating to the Collateral, and
stamp or otherwise xxxx such books and records in such manner as the
Collateral Agent may reasonably require in order to reflect the security
interests granted by this Agreement;
(e) furnish to the Collateral Agent from time to time (but, unless
an Event of Default shall have occurred and be continuing, no more
frequently than quarterly) statements and schedules identifying and
describing any changes since the preceding such
Security Agreement
14
- 14 -
statement or schedule regarding the Copyright Collateral, the Patent
Collateral and the Trademark Collateral, respectively, and such other
reports in connection with the Copyright Collateral, the Patent Collateral
and the Trademark Collateral, as the Collateral Agent may reasonably
request, all in reasonable detail;
(f) promptly upon request of the Collateral Agent, following receipt
by the Collateral Agent of any statements, schedules or reports pursuant
to clause (e) above, modify this Agreement by amending Annexes 2, 3 and/or
4, as the case may be, to include any Copyright, Patent or Trademark that
becomes part of the Collateral under this Agreement;
(g) permit representatives of the Collateral Agent, upon reasonable
notice, at any time during normal business hours to inspect and make
abstracts from its books and records pertaining to the Collateral, and
permit representatives of the Collateral Agent to be present at such
Obligor's place of business to receive copies of all communications and
remittances relating to the Collateral, and forward copies of any notices
or communications received by such Obligor with respect to the Collateral,
all in such manner as the Collateral Agent may require; and
(h) upon the occurrence and during the continuance of any Event of
Default, upon request of the Collateral Agent, promptly notify (and such
Obligor hereby authorizes the Collateral Agent so to notify) each account
debtor in respect of any Accounts or Instruments that such Collateral has
been assigned to the Collateral Agent hereunder, and that any payments due
or to become due in respect of such Collateral are to be made directly to
the Depositary Agent for deposit into the General Receipt & Disbursement
Account pursuant to the Depositary Agreement.
SECTION 4.02. Other Financing Statements and Liens. Except as
otherwise permitted under Section 7.02 of the Credit Agreement, without the
prior written consent of the Collateral Agent, no Obligor shall file or suffer
to be on file, or authorize or permit to be filed or to be on file, in any
jurisdiction, any financing statement or like instrument with respect to the
Collateral in which the Collateral Agent is not named as the sole secured party
for the benefit of the Lenders.
SECTION 4.03. Preservation of Rights. The Collateral Agent shall not
be required to take steps necessary to preserve any rights against prior parties
to any of the Collateral.
Security Agreement
15
- 15 -
SECTION 4.04. Special Provisions Relating to Certain Collateral.
(a) Pledged Collateral.
(i) The Obligors will cause the Pledged Collateral to constitute at
all times 100% of the aggregate ownership interests of each Subsidiary of
the Company (other than any Foreign Subsidiary or any Domestic Subsidiary
directly owned by any Foreign Subsidiary) then outstanding and, in the
case of each Foreign Subsidiary directly owned by the Company and/or by
any other Obligor which is a Domestic Subsidiary, 65% of the total number
of shares or other ownership interests having ordinary voting power for
the election of the board of directors (or equivalent body) of such
Foreign Subsidiary and 100% of each other class or type of ownership
interests of such Foreign Subsidiary.
(ii) So long as no Event of Default shall have occurred and be
continuing, the Obligors shall have the right to exercise all voting,
consensual and other powers of ownership pertaining to the Pledged
Collateral, provided that each Obligor agrees that it will not vote the
Pledged Collateral pledged by it hereunder in any manner that is
inconsistent with the terms of this Agreement, the Credit Agreement or any
such other instrument or agreement; and the Collateral Agent shall execute
and deliver to the Obligors or cause to be executed and delivered to the
Obligors all such proxies, powers of attorney, dividend and other orders,
and all such instruments, without recourse, as the Obligors may reasonably
request for the purpose of enabling the Obligors to exercise the rights
and powers that they are entitled to exercise pursuant to this paragraph
(a)(ii).
(iii) No Subsidiary of the Company shall be restricted from
declaring and paying to any Obligor any dividends or distributions in
respect of its ownership interests held by the Obligor, provided that all
such dividends and distributions shall be paid directly to the Depositary
Agent for deposit into the General Receipt & Disbursement Account and
shall be held therein and/or applied for the purposes permitted under the
Depositary Agreement. If, notwithstanding the foregoing, such dividends or
distributions shall be paid to any Obligor, the same shall be held by such
Obligor in trust for the Collateral Agent and the other Secured Parties,
segregated from the other funds of such Obligor, and be turned over to the
Depositary Agent for deposit into the aforesaid account.
(b) Assigned and Other Agreements. Anything herein to the contrary
notwithstanding, each Obligor party to any Assigned Agreement or other relevant
agreement shall remain liable under such Assigned Agreement or other agreement
to the extent set forth therein to perform all of its duties and obligations
thereunder to the same extent as if this Agreement had not been executed. The
exercise by the Collateral Agent of any of the rights hereunder shall not
Security Agreement
16
- 16 -
release any Obligor from any of its duties or obligations under any Assigned
Agreement or any such other agreement, except to the extent provided therein or
any consent and agreement relating thereto and upon foreclosure and assignment
of such Assigned Agreement. Neither the Collateral Agent nor any of the other
Secured Parties shall have any obligation or liability under any Assigned
Agreement or such other agreement, by reason of the existence of this Agreement,
nor shall the Collateral Agent, nor any of the other Secured Parties, be
obligated to perform any of the obligations or duties of any Obligor thereunder
or to take action to collect or enforce any claim for payment assigned
hereunder, except to the extent provided therein or any such consent and
agreement. If any Obligor fails to perform any agreement contained herein or in
any of the Assigned Agreements or other agreements constituting part of the
Collateral required to be performed by such Obligor, within 30 days after
receipt by the Company of written notice from the Collateral Agent informing it
of such failure, the Collateral Agent may itself perform, or cause the
performance of, such agreement, and the expenses of the Collateral Agent
incurred in connection therewith shall be payable by the Company and shall be
Secured Obligations entitled to the benefits of the collateral security provided
pursuant to Article III.
(c) Intellectual Property.
(i) For the purpose of enabling the Collateral Agent to exercise
rights and remedies under Section 4.05 at such time as the Collateral
Agent shall be lawfully entitled to exercise such rights and remedies, and
for no other purpose, each Obligor hereby grants to the Collateral Agent,
to the extent assignable, an irrevocable, non-exclusive license
(exercisable without payment of royalty or other compensation to such
Obligor) to use, assign, license or sublicense any of the Intellectual
Property now owned or hereafter acquired by such Obligor, wherever the
same may be located, including in such license reasonable access to all
media in which any of the licensed items may be recorded or stored and to
all computer programs used for the compilation or printout thereof.
(ii) Notwithstanding anything contained herein to the contrary, but
subject to the provisions of Section 7.04 of the Credit Agreement that
limit the right of the Obligors to dispose of their property, so long as
no Event of Default shall have occurred and be continuing, the Obligors
will be permitted to exploit, use, enjoy, protect, license, sublicense,
assign, sell, dispose of or take other actions with respect to the
Intellectual Property in the ordinary course of the business of the
Obligors. In furtherance of the foregoing, unless an Event of Default
shall have occurred and be continuing the Collateral Agent shall from time
to time, upon the request of the respective Obligor through the Company,
execute and deliver any instruments, certificates or other documents, in
the form so requested, that such Obligor through the Company shall have
certified are appropriate (in their judgment) to allow them to take any
action permitted above
Security Agreement
17
- 17 -
(including relinquishment of the license provided pursuant to paragraph
(i) immediately above as to any specific Intellectual Property). Further,
upon the payment in full of all of the Secured Obligations and
cancellation or termination of the Commitments or earlier expiration of
this Agreement or release of the Collateral, the Collateral Agent shall
grant back to the Obligors the license granted pursuant to said paragraph
(i). The exercise of rights and remedies under Section 4.05 by the
Collateral Agent shall not terminate the rights of the holders of any
licenses or sublicenses theretofore granted by the Obligors in accordance
with the first sentence of this paragraph (ii).
(d) FCC License. The Company agrees to request a transfer of the FCC
License to a wholly-owned Subsidiary of the Company pursuant to Section 18.H of
the Space System Contract at the earliest time as the Company reasonably
believes that it can satisfy the qualifications of an FCC licensee under
applicable law and FCC regulations and policy. Upon such transfer the FCC
License shall be held in the name of such Subsidiary and, subject to Section
5.13 and any restriction under any then effective Government Rule, the Company
shall forthwith comply with the requirements of Section 4.01 in order to provide
the Collateral Agent a first priority perfected security interest in all of the
ownership interests of such Subsidiary and the requirements of Section 6.12 of
the Credit Agreement with respect to such Subsidiary. If the Company shall fail
for any reason to make such request at such time and such failure shall continue
unremedied for a period of 30 days or any Event of Default shall have occurred
and be continuing, the Collateral Agent is hereby authorized to make such
request and the Company will take any action that the Collateral Agent shall
reasonably request in order to facilitate such transfer to a Subsidiary of the
Company as contemplated hereby. Notwithstanding anything herein or in the Credit
Agreement to the contrary, the Company will not create, incur, assume or permit
to exist any Lien on the ownership interests of such Subsidiary or the assets
thereof, including, without limitation, the FCC License (except any Permitted
Lien). If there shall be a change in law, or the rules or policies of the FCC
which would permit the granting of a security interest in the FCC License prior
to or after the date of the transfer of the FCC License as contemplated herein,
the Company will, and will cause its relevant License Subsidiary to, take such
action as the Administrative Agent may reasonably request (including, without
limitation an amendment to this Agreement or the execution and delivery of a new
Security Agreement), in order to create a first priority perfected security
interest in the FCC License in favor of the Collateral Agent for the benefit of
the Secured Parties.
(e) Satellites. Each Obligor agrees and acknowledges that the
Collateral includes satellites and that the Collateral Agent intends to perfect
its security interest in and Lien on all such satellites. Without limiting in
any respect any other provisions of this Agreement, each Obligor agrees to
assist the Collateral Agent in achieving such perfection through whatever method
or methods the Collateral Agent may from time to time reasonably request,
including
Security Agreement
18
- 18 -
(i) filing UCC financing statements on the basis that satellites constitute
"mobile goods" under the Uniform Commercial Code, (ii) filing UCC financing
statements or other Lien perfection documents in each jurisdiction in which any
satellite is manufactured, integrated or processed, from where any satellite is
launched, from where it is controlled or in which it may from time to time be
deemed located to the extent such filing in such jurisdiction is reasonably
required in order to perfect and maintain the perfection of the Collateral
Agent's security interests therein and Liens thereon, (iii) taking all actions
required to be consistent with present and future practices of third-party
creditors intending to perfect security interests in satellites owned by United
States persons launched from the United States or from any other location from
which the satellites for the IRIDIUM System are intended to be launched, and
(iv) taking all actions reasonably required from time to time to create,
maintain and perfect security interests in satellites (both before and after
launch and while in orbit) as specified in any United States, foreign or
international law, regulation, convention or treaty relating to the creation,
perfection and/or priority of security interests and Liens in satellites that is
applicable to satellites of the type deployed in the IRIDIUM System.
(f) Rolling Stock. At any time after the occurrence and during the
continuance of an Event of Default, each Obligor shall, upon the request of the
Collateral Agent, deliver to the Collateral Agent originals of the certificates
of title or ownership for the Rolling Stock owned by it with a fair market value
in excess of $100,000 with the Collateral Agent listed as lienholder and take
such other action as the Collateral Agent shall reasonably deem appropriate to
perfect the security interest created hereunder in all such Rolling Stock. Upon
the sale of any such Rolling Stock permitted under the Credit Agreement, so long
as no Event of Default shall have occurred and be continuing, upon the request
of any Obligor, the Collateral Agent shall execute and deliver to such Obligor
such instruments as such Obligor shall reasonably request to remove the notation
of the Collateral Agent as lienholder on the certificate of title or ownership
for any such Rolling Stock; provided that any such instruments shall be
delivered, and the release effective only upon receipt by the Collateral Agent
of a certificate from such Obligor stating that the Rolling Stock the lien on
which is to be released is to be sold or has suffered a casualty loss (with
title thereto passing to the casualty insurance company therefor in settlement
of the claim for such loss).
(g) Governmental Collateral. The Company shall notify the Collateral
Agent of any Collateral which constitutes a claim against the United States or
any foreign government or state or any instrumentality, agency or subdivision
thereof, the assignment of which claim is restricted by applicable law or
requires particular procedures. Upon the request of the Collateral Agent, the
relevant Obligor will take all reasonable actions required to comply, to the
Collateral Agent's satisfaction, with such legal requirements and procedures
applicable with respect to such Collateral, including, without limitation, the
Assignment of Claims Act of 1940, as amended, or any similar applicable law.
Security Agreement
19
- 19 -
SECTION 4.05. Events of Default. During the period during which an
Event of Default shall have occurred and be continuing:
(a) each Obligor shall, at the request of the Collateral Agent,
assemble the Collateral owned by it at such place or places, reasonably
convenient to both the Collateral Agent and such Obligor, designated in
its request;
(b) the Collateral Agent may make any reasonable compromise or
settlement deemed desirable with respect to any of the Collateral and may
extend the time of payment, arrange for payment in installments, or
otherwise modify the terms of, any of the Collateral;
(c) the Collateral Agent shall have all of the rights and remedies
with respect to the Collateral of a secured party under the Uniform
Commercial Code (whether or not said Code is in effect in the jurisdiction
where the rights and remedies are asserted) and such additional rights and
remedies to which a secured party is entitled under the laws in effect in
any jurisdiction where any rights and remedies hereunder may be asserted,
including, without limitation, the right, to the maximum extent permitted
by law, to exercise all voting, consensual and other powers of ownership
pertaining to the Collateral as if the Collateral Agent were the sole and
absolute owner thereof (and each Obligor agrees to take all such action as
may be reasonably necessary to give effect to such right);
(d) the Collateral Agent in its discretion may, in its name or in
the name of the Obligors or otherwise, demand, xxx for, collect or receive
any money or property at any time payable or receivable on account of or
in exchange for any of the Collateral, but shall be under no obligation to
do so; and
(e) the Collateral Agent may, upon 30 days' prior written notice to
the Obligors of the time and place, with respect to the Collateral or any
part thereof that shall then be or shall thereafter come into the
possession, custody or control of the Secured Parties or any of their
respective agents, sell, lease, assign or otherwise dispose of all or any
part of such Collateral, at such place or places as the Collateral Agent
deems best, and for cash or for credit or for future delivery, at public
or private sale, without demand of performance or notice of intention to
effect any such disposition or of the time or place thereof (except such
notice as is required above or by applicable statute and cannot be
waived), and any Secured Party or anyone else may be the purchaser,
lessee, assignee or recipient of any or all of the Collateral so disposed
of at any public sale (or, to the extent permitted by law, at any private
sale) and thereafter hold the same absolutely, free from any claim or
right of whatsoever kind, including any right or equity of redemption
(statutory or otherwise), of
Security Agreement
20
- 20 -
the Obligors, any such demand, notice and right or equity being hereby
expressly waived and released. In the event of any sale, assignment, or
other disposition of any of the Trademark Collateral, the goodwill
connected with and symbolized by the Trademark Collateral subject to such
disposition shall be included, and the Obligors shall supply to the
Collateral Agent or its designee, for inclusion in such sale, assignment
or other disposition, all Intellectual Property relating to such Trademark
Collateral. The Collateral Agent may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from
time to time by announcement at the time and place fixed for the sale, and
such sale may be made at any time or place to which the sale may be so
adjourned.
Notwithstanding anything herein or in any other Security Document to
the contrary, neither the Collateral Agent nor any of the other Secured Parties
shall sell, lease, assign or otherwise dispose, or cause the sale, lease,
assignment or other disposition, of all or any part of the Collateral pursuant
to this Agreement unless not less than 10 days prior thereto the Collateral
Agent shall have made a demand (or caused a demand to be made) in respect of the
Reserve Capital Call Obligations in accordance with Section 4.02 of the Iridium
LLC Agreement, provided that (i) nothing herein shall be construed to limit the
rights of the Collateral Agent to exercise any other remedies hereunder prior to
any such sale, lease, assignment or other disposition or from and after any
event affecting any Credit Party or Iridium LLC described in clause (i) or (j)
of Section 9.01 of the Credit Agreement and (ii) the requirement of this
paragraph shall not apply if the aggregate outstanding amount in respect of the
Loans (net of any cash balances in the Project Accounts) shall exceed the
aggregate amount of the Reserve Capital Call Obligations.
The proceeds of each collection, sale or other disposition under
this Section, including by virtue of the exercise of the license granted to the
Collateral Agent in Section 4.04(b), shall be applied in accordance with Section
4.09. Any such sale or other disposition under this Section shall be conducted
in a commercially reasonable manner.
The Obligors recognize that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Collateral Agent may be compelled, with respect to any sale
of all or any part of the Collateral, to limit purchasers to those who will
agree, among other things, to acquire the Collateral for their own account, for
investment and not with a view to the distribution or resale thereof. The
Obligors acknowledge that any such private sales may be at prices and on terms
less favorable to the Collateral Agent than those obtainable through a public
sale without such restrictions, and, notwithstanding such circumstances, agree
that any such private sale shall be deemed to have been made in a commercially
reasonable manner and that the Collateral Agent shall have no obligation to
engage in public sales and no obligation to delay the sale of any Collateral for
the period of time necessary to permit the respective issuer thereof to register
it for public sale.
Security Agreement
21
- 21 -
SECTION 4.06. Deficiency. If the proceeds of sale, collection or
other realization of or upon the Collateral pursuant to Section 4.05 are
insufficient to cover the costs and expenses of such realization and the payment
in full of the Secured Obligations, the Obligors shall remain (in the case of
each Subsidiary Obligor, jointly and severally) liable for any deficiency.
SECTION 4.07. Removals, Etc. Without at least 30 days' prior written
notice to the Collateral Agent, no Obligor shall (i) maintain the original or
"master" copies of any of its books and records with respect to the Collateral
at any office or maintain its principal place of business at any place, or
(except with respect to Collateral in the possession of the Collateral Agent)
permit any property to be located anywhere other than at one of the locations
identified in Annex 6 under its name (other than satellites in orbit), (ii)
change its name from the name shown on the signature pages hereto or (iii) adopt
or do business under any name other than a name beginning with the word
"Iridium".
SECTION 4.08. Private Sale. No Secured Party shall incur any
liability as a result of the sale of the Collateral, or any part thereof, at any
private sale pursuant to Section 4.05 conducted in a commercially reasonable
manner. Each Obligor hereby waives any claims against the Secured Parties
arising by reason of the fact that the price at which the Collateral may have
been sold at such a private sale was less than the price that might have been
obtained at a public sale or was less than the aggregate amount of the Secured
Obligations, even if the Collateral Agent accepts the first offer received and
does not offer the Collateral to more than one offeree.
SECTION 4.09. Application of Proceeds. Except as otherwise herein
expressly provided, the proceeds of any collection, sale or other realization of
all or any part of the Collateral pursuant hereto, and any other cash at the
time held by the Collateral Agent under this Agreement, shall be applied by the
Collateral Agent:
First, to the payment of the costs and expenses of such collection,
sale or other realization, including reasonable out-of-pocket costs and
expenses of the Collateral Agent and the reasonable fees and expenses of
its agents and counsel, and all reasonable expenses incurred and advances
made by the Collateral Agent in connection therewith;
Next, to the payment in full of the Secured Obligations, in each
case equally and ratably in accordance with the respective amounts thereof
then due and owing or as the Lenders holding the same may otherwise agree;
and
Finally, to the payment to the respective Obligor, or their
respective successors or assigns, or as a court of competent jurisdiction
may direct, of any surplus then remaining.
Security Agreement
22
- 22 -
As used in this Article, "proceeds" of Collateral means cash,
securities and other property realized in respect of, and distributions in kind
of, Collateral, including any thereof received under any reorganization,
liquidation or adjustment of debt of the Obligors or any issuer of or obligor on
any of the Collateral.
SECTION 4.10. Attorney-in-Fact. Without limiting any rights or
powers granted by this Agreement to the Collateral Agent while no Event of
Default has occurred and is continuing, upon the occurrence and during the
continuance of any Event of Default the Collateral Agent is hereby appointed the
attorney-in-fact of each Obligor for the purpose of carrying out the provisions
hereof and taking any action and executing any instruments that the Collateral
Agent may reasonably deem necessary or advisable to accomplish the purposes
hereof, which appointment as attorney-in-fact is irrevocable and coupled with an
interest. Without limiting the generality of the foregoing, so long as the
Collateral Agent shall be entitled under this Article IV to make collections in
respect of the Collateral, the Collateral Agent shall have the right and power
to receive, endorse and collect all checks made payable to the order of any
Obligor representing any dividend, payment or other distribution in respect of
the Collateral or any part thereof and to give full discharge for the same.
SECTION 4.11. Perfection. Prior to or concurrently with the
execution and delivery of this Agreement, each Obligor shall (i) file such
financing statements and other documents in such offices as the Collateral Agent
may reasonably request to perfect the security interests granted by Article III,
(ii) take any action (including establishing satisfactory control arrangements)
as the Collateral Agent may reasonably request to perfect the pledge of any
ownership interests for purposes of Article 8 of the Uniform Commercial Code
and/or (iii) deliver to the Collateral Agent all certificates identified in
Annex 1, accompanied by undated stock or transfer powers duly executed in blank.
SECTION 4.12. Release of Collateral; Termination.
(a) Upon any disposition of property permitted under the Credit
Documents or any disposition to which the Required Lenders have consented or
upon any disposition in connection with any Event of Loss, the Lien on such
property shall be released, and the Collateral Agent shall promptly execute and
deliver, at the expense of the relevant Obligor, such release and/or other
documents related thereto as reasonably requested by such Obligor.
(b) When all Secured Obligations shall have been paid in full and
the Commitments of the Lenders under the Credit Agreement shall have expired or
been terminated, this Agreement shall terminate, and the Collateral Agent shall
forthwith cause to be assigned, transferred and delivered, against receipt but
without any recourse, warranty or representation
Security Agreement
23
- 23 -
whatsoever, any remaining Collateral and money received in respect thereof, to
or on the order of the respective Obligor and to be released and canceled all
licenses and rights referred to in Section 4.04(c). The Collateral Agent shall
also execute and deliver to the respective Obligor upon such termination such
Uniform Commercial Code termination statements and such other documentation as
shall be reasonably requested by the respective Obligor to effect the
termination and release of the Liens on the Collateral.
SECTION 4.13. Further Assurances. Each Obligor agrees that, from
time to time upon the written request of the Collateral Agent, such Obligor will
execute and deliver such further documents and do such other acts and things as
the Collateral Agent may reasonably request in order fully to effect the
purposes of this Agreement. Without limiting the foregoing, each Obligor hereby
authorizes the Collateral Agent to file one or more financing or continuation
statements, and amendments thereto, relative to all or any part of the
Collateral without the signature of such Obligor where permitted by law,
provided that copies of any such statement or amendment thereto shall promptly
be delivered to the Company.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. No Waiver. No failure on the part of the Collateral
Agent or any other Secured Party to exercise, and no course of dealing with
respect to, and no delay in exercising, any right, power or remedy hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise by
the Collateral Agent or any other Secured Party of any right, power or remedy
hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies herein are cumulative and are not
exclusive of any remedies provided by law.
SECTION 5.02. Notices. All notices, requests, consents and demands
hereunder shall be in writing and telecopied or delivered to the intended
recipient at (i) in the case of each Obligor, the "Address for Notices" for the
Company specified pursuant to Section 11.01 of the Credit Agreement and (ii) in
the case of the Collateral Agent, at the "Address for Notices" for the
Administrative Agent specified in Section 11.01 of the Credit Agreement, and
shall be deemed to have been given at the times specified in said Section 11.01.
SECTION 5.03. Expenses.
(a) The Obligors jointly and severally agree to reimburse each of
the Lenders and the Collateral Agent for all reasonable costs and expenses of
the Lenders and the Collateral Agent
Security Agreement
24
- 24 -
(including, without limitation, the reasonable fees and expenses of legal
counsel) in connection with (i) any Event of Default and any enforcement or
collection proceeding resulting therefrom, including, without limitation, all
manner of participation in or other involvement with (w) performance by the
Collateral Agent of any obligations of the Obligors in respect of the Collateral
that the Obligors have failed or refused to perform, (x) bankruptcy, insolvency,
receivership, foreclosure, winding up or liquidation proceedings, or any actual
or attempted sale, or any exchange, enforcement, collection, compromise or
settlement in respect of any of the Collateral, and for the care of the
Collateral and defending or asserting rights and claims of the Collateral Agent
in respect thereof, by litigation or otherwise, including expenses of insurance,
(y) judicial or regulatory proceedings and (z) workout, restructuring or other
negotiations or proceedings (whether or not the workout, restructuring or
transaction contemplated thereby is consummated) and (ii) the enforcement of
this Section, and all such costs and expenses shall be Secured Obligations
entitled to the benefits of the collateral security provided pursuant to Article
III.
(b) The Company will pay all filing, registration and recording fees
or refiling, re-registration and re-recording fees, and all expenses incident to
the execution and delivery of this Agreement, any agreement supplemental hereto
and any instruments of further assurance, and all federal, state, county and
municipal stamp taxes and other taxes, duties, imposts, assessments and charges
arising out of or in connection with the execution and delivery of this
Agreement, any agreement supplemental hereto and any instruments of further
assurance.
(c) The Company will pay, before any fine, penalty, interest or cost
attaches thereto, all taxes, assessments and other governmental or
non-governmental charges or levies now or hereafter assessed or levied against
the Collateral or upon the Liens provided for herein (except for taxes and
assessments not then delinquent or which the Company may, pursuant to the
provisions of Section 6.03 of the Credit Agreement, permit to remain unpaid) as
well as pay, or cause to be paid, all claims for labor, materials or supplies
which, if unpaid, might by law become a Lien (other than a Lien permitted under
Section 7.02 of the Credit Agreement) thereon, and will retain copies of, and,
upon request, permit the Collateral Agent to examine, receipts showing payment
of any of the foregoing.
SECTION 5.04. Amendments, Etc. The terms of this Agreement may be
waived, altered or amended only by an instrument in writing duly executed by
each Obligor and the Collateral Agent. Any such amendment or waiver shall be
binding upon the Collateral Agent, each other Secured Party and each Obligor.
SECTION 5.05. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the respective successors and assigns
of each Obligor, the Collateral
Security Agreement
25
- 25 -
Agent and each other Secured Party provided, however, that no Obligor shall
assign or transfer its rights hereunder without the prior written consent of the
Collateral Agent.
SECTION 5.06. Captions. The caption and section headings used herein
are for convenience of reference only, are not part of this Agreement and shall
not affect the construction of, or be taken into consideration in interpreting,
this Agreement.
SECTION 5.07. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract.
SECTION 5.08. Governing Law; Jurisdiction; Consent to Service of
Process.
(a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) Each Obligor hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that the Collateral Agent or any other Secured Party may
otherwise have to bring any action or proceeding relating to this Agreement
against any Obligor or its properties in the courts of any jurisdiction.
(c) Each Obligor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) To the extent that any Obligor may be or become entitled, in any
jurisdiction in which judicial proceedings may at any time be commenced with
respect to this Agreement, to
Security Agreement
26
- 26 -
claim for itself or its property or revenues any immunity from suit, court
jurisdiction, attachment prior to judgment, attachment in aid of execution of a
judgment, execution of a judgment or from any other legal process or remedy
relating to its obligations under this Agreement and to the extent that in any
such jurisdiction there may be attributed such an immunity (whether or not
claimed), such Obligor hereby irrevocably agrees not to claim and hereby
irrevocably waives such immunity to the fullest extent permitted by the laws of
such jurisdiction.
SECTION 5.09. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 5.10. No Third Party Beneficiaries. The agreements of the
parties hereto are solely for the benefit of the Obligors, the Collateral Agent
and the other Secured Parties, and no other Person (including, without
limitation, any other Credit Party, any contractor, subcontractor, supplier or
materialman furnishing supplies, goods or services to or for the benefit of the
Project or any other creditor of the Company or any of its Subsidiaries) shall
have any rights hereunder.
SECTION 5.11. Agents and Attorneys-in-Fact. The Collateral Agent may
employ agents and attorneys-in-fact in connection herewith and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith.
SECTION 5.12. Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 5.13. FCC Approval. Notwithstanding any other provision of
this Agreement, from and after the transfer of the FCC License to the Company or
any of its
Security Agreement
27
- 27 -
Subsidiaries pursuant to Section 18.H of the Space System Contract, no action
shall be taken hereunder by the Collateral Agent or any other Secured Party with
respect to any item of Collateral that would constitute or result in any
assignment of the FCC License or any change of control of the holder of the FCC
License, if, under then existing applicable law, regulations and FCC policies,
such assignment or change of control would require the prior approval of the
FCC. The Company agrees to take, or to cause its Subsidiaries to take, at the
Company's expense, any action that the Collateral Agent may reasonably request
in order to obtain from the FCC such approval as may be necessary (a) to enable
the Collateral Agent to exercise and enjoy the full rights and benefits granted
to the Collateral Agent by this Agreement and each other agreement, instrument
and document delivered to the Collateral Agent in connection herewith and (b)
for any action or transaction contemplated by this Agreement for which such
approval is or shall be required by law, and specifically, without limitation,
upon request by the Collateral Agent, to prepare, sign and file with the FCC the
assignor's or transferor's portion of any application or applications for
consent to the assignment of any license or transfer of control necessary or
appropriate under the FCC's rules and regulations, or for approval of any sale
of the Collateral provided by this Agreement by or on behalf of the Collateral
Agent or assumption by the Collateral Agent of voting rights relating thereto
effected in accordance with the terms hereof.
Security Agreement
28
- 28 -
IN WITNESS WHEREOF, the parties hereto have caused this Pledge and
Security Agreement to be duly executed and delivered as of the day and year
first above written.
COMPANY
IRIDIUM OPERATING LLC
By
------------------------------------
Title:
Security Agreement
29
- 29 -
SUBSIDIARY GUARANTORS
IRIDIUM CAPITAL CORPORATION
By
------------------------------------
Title:
IRIDIUM IP LLC
By
------------------------------------
Title:
IRIDIUM ROAMING LLC
By
------------------------------------
Title:
[INSERT SIGNATURE LINE FOR EACH
OTHER SUBSIDIARY GUARANTOR:]
[NAME OF SUBSIDIARY GUARANTOR]
By
------------------------------------
Title:
Security Agreement
30
- 30 -
COLLATERAL AGENT
THE CHASE MANHATTAN BANK,
as Collateral Agent
By
------------------------------------
Title:
Security Agreement
31
ANNEX 1
PLEDGED COLLATERAL
[See Sections 2(b) and (c) and 3(a) and (b)]
Type or
Class of Number of
Certificate Registered Ownership Shares or
Issuer Nos. (if any) Owner Interests Interests
[to be inserted]
Annex 1 to Security Agreement
32
ANNEX 2
LIST OF COPYRIGHTS, COPYRIGHT REGISTRATIONS AND
APPLICATIONS FOR COPYRIGHT REGISTRATIONS
[See Section 2(d)]
[Complete for each Obligor:]
[NAME OF OBLIGOR]
Title Date Filed Registration No. Effective Date
Annex 2 to Security Agreement
33
ANNEX 3
LIST OF PATENTS AND PATENT APPLICATIONS
[See Section 2(d)]
[Complete for each Obligor:]
[NAME OF OBLIGOR]
File Patent Country Registration No. Date
Annex 3 to Security Agreement
34
ANNEX 4
LIST OF TRADE NAMES, TRADEMARKS, SERVICES MARKS,
TRADEMARK AND SERVICE XXXX REGISTRATIONS AND
APPLICATIONS FOR TRADEMARK AND SERVICE XXXX REGISTRATIONS
[See Section 2(d)]
U.S. TRADEMARKS
[Complete for each Obligor:]
[NAME OF OBLIGOR]
Application (A)
Registration (R) Registration
Xxxx or Series No. (S) or Filing Date
Annex 4 to Security Agreement
35
- 2 -
FOREIGN TRADEMARKS
[Complete for each Obligor:]
[NAME OF OBLIGOR]
Application (A) Registration or
Xxxx Registration (R) Country Filing Date (F)
Annex 4 to Security Agreement
36
ANNEX 5
LIST OF CONTRACTS, LICENSES AND OTHER AGREEMENTS
[See Section 2(d), (e) and (f)]
[Complete for each Obligor:]
[NAME OF OBLIGOR]
Annex 5 to Security Agreement
37
ANNEX 6
LIST OF LOCATIONS
[See Section 5.07]
[Complete for each Obligor:]
[NAME OF OBLIGOR]
Annex 6 to Security Agreement
