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EXHIBIT 10.24
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UNIT AGREEMENT
BY AND AMONG
IRIDIUM LLC
(A DELAWARE LIMITED LIABILITY COMPANY),
IRIDIUM CAPITAL CORPORATION
(A DELAWARE CORPORATION),
IRIDIUM WORLD COMMUNICATIONS LTD.
(A BERMUDA COMPANY),
IRIDIUM ROAMING LLC
(A DELAWARE LIMITED LIABILITY COMPANY),
IRIDIUM IP LLC
(A DELAWARE LIMITED LIABILITY COMPANY)
AND
STATE STREET BANK AND TRUST COMPANY,
AS UNIT AGENT, TRUSTEE
AND WARRANT AGENT
DATED AS OF JULY 16, 1997
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This UNIT AGREEMENT (the "Agreement") dated as of July 16,
1997 is by and among Iridium LLC, a Delaware limited liability company
("Iridium"), Iridium Capital Corporation, a Delaware corporation ("Capital"
and, together with Iridium, the "Note Issuers"), Iridium World Communications
Ltd., a Bermuda company ("IWCL"), Iridium Roaming LLC and Iridium IP LLC
(together, the "Guarantor Subsidiaries" and together with Iridium, Capital and
IWCL, the "Issuers"), and State Street Bank and Trust Company, as Trustee,
Warrant Agent and Unit Agent.
WHEREAS, the Note Issuers propose to issue $300,000,000
aggregate principal amount of its 13% Senior Notes due 2005, Series A (the
"Notes") pursuant to an Indenture dated as of July 16, 1997 (the "Indenture")
among the Note Issuers, as joint and several obligors, the Guarantor
Subsidiaries and State Street Bank and Trust Company, as trustee (the
"Trustee"), and IWCL proposes to issue 300,000 warrants (the "Warrants"), each
of which represents the right to purchase 5.2 shares (the "Warrant Shares") of
Class A Common Stock, par value $0.01 per share (the "Class A Common Stock") of
IWCL, pursuant to a Warrant Agreement dated as of July 16, 1997 (the "Warrant
Agreement") between IWCL and State Street Bank and Trust Company, as Warrant
Agent (the "Warrant Agent"). The Warrants represent the right to purchase an
aggregate of 1,560,000 Warrant Shares. The Notes and the Warrants issued in
connection therewith will initially be represented by units (the "Units"), with
each Unit consisting of $1,000 principal amount of Notes and one Warrant. The
Note Issuers also propose to issue $500,000,000 aggregate principal amount of
its 14% Senior Notes due 2005, Series B (the "Series B Notes") pursuant to an
Indenture dated as of July 16, 1997 among the Note Issuers, as joint and
several obligors, the Guarantor Subsidiaries and State Street Bank and Trust
Company, as trustee. The Series B Notes are not subject to this Agreement.
WHEREAS, the Issuers, the Trustee and the Warrant Agent desire
to appoint State Street Bank and Trust Company to act as their agent for the
purpose of issuing certificates representing the Units and for the registration
of transfers and exchanges thereof. State Street Bank and Trust Company in
such capacity is referred to herein as the "Unit Agent."
WHEREAS, the Units will be exchangeable for the Notes and
Warrants represented thereby upon the earlier to occur of: (i) the
commencement of an exchange offer or the effectiveness of a shelf registration
statement for the Notes and (ii) such date after January 15, 1998 as Chase
Securities Inc. may, in its discretion, deem appropriate. The date on which
the earlier of the event listed in (i) and the event listed in (ii) above
occurs is referred to as the "Separability Date."
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
SECTION 1. Appointment of Unit Agent. (a) The Issuers
hereby appoint the Unit Agent to act as agent for it in accordance with the
instructions set forth hereinafter in this Agreement, and the Unit Agent hereby
accepts such appointment.
(b) The Trustee, the Note Issuers and the Guarantor
Subsidiaries hereby appoint the Unit Agent as an authenticating agent and
Registrar (as defined in the Indenture) for the Notes for so long as the Notes
are represented by the Units. In its capacity as an authenticating agent and
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Registrar, the Unit Agent shall have the rights and obligations provided for
such capacities in the Indenture.
(c) The Warrant Agent and IWCL hereby appoint the Unit
Agent as an authenticating agent and the holder of the Certificate Register (as
defined in the Warrant Agreement) (in such capacity, the "Warrants Registrar")
for so long as the Warrants are represented by the Units. In its capacity as
an authenticating agent and Warrants Registrar, the Unit Agent shall have the
rights and obligations provided for such capacities in the Warrant Agreement.
SECTION 2. Unit Certificates. (a) The Units will initially
be represented in the form of one or more global Unit certificates (the "Global
Units"), substantially in the form of Exhibit A attached hereto, as required by
the Indenture and the Warrant Agreement. The Global Units to be delivered
pursuant to this Agreement shall bear the legend set forth in Exhibit B
attached hereto. Global Units shall represent such of the outstanding Units as
shall be specified therein and each shall provide that it shall represent the
aggregate Units from time to time endorsed thereon and that the aggregate
amount of outstanding Units represented thereby may from time to time be
reduced or increased, as appropriate. Any endorsement of a Global Unit to
reflect the amount of any increase or decrease in the amount of outstanding
Units represented thereby shall be made by the Unit Agent and Depositary (as
defined below) in accordance with instructions given by the holder thereof.
The Depository Trust Company shall act as the depositary (the "Depositary")
with respect to any Global Units until a successor shall be appointed by the
Issuers and the Unit Agent.
(b) The initial Units are being offered and sold by the
Issuers pursuant to the Purchase Agreement dated July 11, 1997 among the
Issuers, Chase Securities Inc. and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated (the "Purchase Agreement"). Initial Units offered and sold to
"qualified institutional buyers" (as defined in Rule 144A under the Securities
Act of 1933, as amended (the "Securities Act")) ("QIBs") in accordance with
Rule 144A under the Securities Act ("Rule 144A") as provided in the Purchase
Agreement, shall be issued on the date of first issuance of the Units (the
"Issue Date") initially in the form of one or more permanent global Units in
registered form (the "Rule 144A Global Units"), deposited with the Unit Agent,
as custodian for the Depositary, duly executed by the Issuers and countersigned
by the Unit Agent as hereinafter provided. The aggregate amount of any Rule
144A Global Units may from time to time be increased or decreased by
adjustments made on the records of the Unit Agent, as custodian for the
Depositary or its nominee, as hereinafter provided.
(c) Initial Units offered and sold in offshore
transactions in reliance on Regulation S as provided in the Purchase Agreement,
shall be issued initially on the Issue Date in the form of one or more
temporary global Units in registered form (the "Regulation S Temporary Global
Units"). The Regulation S Temporary Global Units shall be registered in the
name of, and held by, a temporary certificate holder designated by Chase
Securities Inc. until the 40th day after the later of the commencement of the
distribution of the respective initial Units and the Issue Date (the
"Regulation S Restricted Period") with respect to the offer and sale of the
initial Units (the "Regulation S Units Exchange Date"). Iridium shall promptly
notify the Unit Agent in writing of the occurrence a Regulation S Units
Exchange Date and, within a reasonable time after the Regulation S Units
Exchange Date, upon receipt by the Unit Agent and Iridium of one or more
certificates
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substantially in the form set forth in Exhibit C, the Issuers shall execute, if
not already executed, and the Unit Agent shall authenticate and deliver, if not
already authenticated and delivered, one or more permanent global Units in
registered form, substantially in the form set forth in Exhibit A (the
"Regulation S Permanent Global Units", and together with the Regulation S
Temporary Global Units, the "Regulation S Global Units") or increase the
beneficial ownership interest therein if already executed, authenticated and
delivered, in exchange for the Regulation S Temporary Global Units of like
tenor and amount. The Regulation S Global Units and Rule 144A Global Units are
referred to herein as the "Global Units." Notwithstanding the foregoing, the
Issuers may execute, and the Unit Agent may authenticate and deliver Regulation
S Permanent Global Units in 0 (zero) amount at the time of issuance of the
Regulation S Temporary Units.
(d) Members of, or participants in, the Depositary
("Agent Members") shall have no rights under this Unit Agreement with respect
to any Global Unit held on their behalf by the Depositary, or the Unit Agent as
its custodian, or under such Global Unit, and the Depositary may be treated by
the Issuers, the Unit Agent and any agent of the Issuers or the Unit Agent as
the absolute owner of such Global Unit for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Issuers, the
Unit Agent or any agent of the Issuers or the Unit Agent from giving effect to
any written certification, proxy or other authorization furnished by the
Depositary or shall impair, as between the Depositary and its Agent Members,
the operation of customary practices governing the exercise of the rights of a
Holder of any Unit.
(e) Transfers of a Global Unit shall be limited to
transfers of such Global Unit in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in a
Global Unit may be transferred in accordance with the rules and procedures of
the Depositary and the provisions of Section 5. Except as otherwise provided
herein, beneficial owners may obtain Definitive Units in exchange for their
beneficial interests in a Global Unit only if (i) the Issuers notify the Unit
Agent in writing that the Depositary is no longer willing or able to act as
Depositary for such Global Unit or the Depositary ceases to be a "clearing
agency" registered under the Exchange Act, at a time when the Depositary is
required to be so registered in order to act as Depositary, and, in each case,
a successor depositary is not appointed by the Issuers within 90 days of such
notice, (ii) the Issuers, at their option, notify the Unit Agent in writing
that they elect to cause the issuance of Definitive Units or (iii) an Event of
Default has occurred and is continuing under the Indenture and the Unit Agent
has received a request from the Depositary to effect such exchange.
(f) In connection with any transfer of a portion of the
beneficial interest in a Global Unit pursuant to subsection (e) of this Section
or Section 5 to beneficial owners who are required to hold Definitive Units,
the Unit Agent shall reflect on its books and records the date and a decrease
in the amount of such Global Unit in an amount equal to the amount of the
beneficial interest in the Global Unit to be transferred, and the Issuers shall
execute, and the Unit Agent shall authenticate and deliver, one or more
Definitive Units of like tenor and amount.
(g) In connection with the transfer of an entire Global
Unit to beneficial owners pursuant to subsection (e) of this Section, such
Global Unit shall be deemed to be surrendered to the Unit Agent for
cancellation, and the Issuers shall execute, and the Unit Agent shall
authenticate and
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deliver, to each beneficial owner identified by the Depositary in exchange for
its beneficial interest in such Global Unit, an equal aggregate principal
amount of Definitive Units of authorized denominations.
(h) Any Definitive Unit delivered in exchange for an
interest in a Global Unit pursuant to subsection (e) or subsection (f) of this
Section shall, unless the circumstances provided in Section 5(d)(i)(x) exist or
except as otherwise provided in Section 5(h), bear the Private Placement
Legend.
(i) The registered holder of a Global Unit may grant
proxies and otherwise authorize any person, including Agent Members and persons
that may hold interests through Agent Members, to take any action which a
Holder is entitled to take under this Unit Agreement or the Units.
SECTION 3. Execution of Unit Certificates. Certificates for
Global Units and units represented in registered form as definitive Unit
certificates (the "Definitive Units") (collectively, the "Unit Certificates")
shall be signed on behalf of each of the Issuers by an Officer (as defined
below) of each of the Issuers. As used herein, "Officer" means the chairman of
the board, the chief executive officer, the chief financial officer, the
president, any vice president, the treasurer, secretary or any assistant
secretary of the applicable Issuer. Each such signature upon the Unit
Certificates may be in the form of a facsimile signature of the current or any
future Officer of each of the Issuers and may be imprinted or otherwise
reproduced on the Unit Certificates and for that purpose the Issuers may adopt
and use the facsimile signature of any person who shall have been an Officer of
each of the Issuers, notwithstanding the fact that at the time the Unit
Certificates shall be authenticated and delivered or disposed of he or she
shall have ceased to hold such office.
In case any Officer of any Issuer who shall have signed any of
the Unit Certificates shall cease to be such Officer of such Issuer before the
Unit Certificates so signed shall have been authenticated by the Unit Agent, or
disposed of by such Issuer, such Unit Certificates nevertheless may be
authenticated and delivered or disposed of as though such person had not ceased
to be such an Officer of such Issuer; and any Unit Certificate may be signed on
behalf of each of the Issuers by any person who, at the actual date of the
execution of such Unit Certificate, shall be a proper Officer of such Issuer to
sign such Unit Certificate, although at the date of the execution of this Unit
Agreement any such person was not such Officer.
Unit Certificates shall be dated the date of authentication by
the Unit Agent.
SECTION 4. Registration and Authentication. The Unit Agent,
on behalf of the Issuers, shall number and register the Unit Certificates in a
register as they are issued by the Issuers.
Unit Certificates shall be manually authenticated by the Unit
Agent and shall not be valid for any purpose unless so authenticated. The Unit
Agent shall, upon written instructions of the Issuers in the form of an
officers' certificate signed by an Officer (who must either be the principal
executive officer, principal financial officer or principal accounting officer)
(an "Officers' Certificate") specifying the number of Units to be
authenticated, the date of such Units, and such
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other information as the Unit Agent may request, initially authenticate and
deliver not more than 300,000 Units and shall thereafter authenticate and
deliver such Units as otherwise provided in this Agreement.
The Issuers and the Unit Agent may deem and treat the
registered holder(s) of the Unit Certificates as the absolute owner(s) thereof
(notwithstanding any notation of ownership or other writing thereon made by
anyone) for all purposes, and neither any of the Issuers nor the Unit Agent
shall be affected by any notice to the contrary.
SECTION 5. Registration of Transfers and Exchanges. (a)
During the period beginning on the later of the Issue Date and the last date on
which any of the Issuers or any Affiliate of the Issuers was the owner of an
initial Unit (or any predecessor of such Unit), and ending on the date two
years (or such shorter period of time as permitted by Rule 144(k) under the
Securities Act or any successor provision thereunder) from any such date, any
initial Unit issued or owned during the period set forth above, as the case may
be, and any Unit issued upon registration of transfer of, or in exchange for,
or in lieu of, such initial Unit shall be deemed a "Transfer Restricted
Security" and shall be subject to the restrictions on transfer provided in the
Private Placement Legend (as defined); provided, however, that the term
"Transfer Restricted Security" shall not include (a) any initial Unit which is
issued upon transfer of, or in exchange for, any Unit which is not a Transfer
Restricted Security or (b) any initial Unit as to which such restrictions on
transfer have been terminated in accordance with this Section 5. Any Transfer
Restricted Security shall bear the Private Placement Legend (as defined).
(b) Every Transfer Restricted Security shall be subject to
the restrictions on transfer set forth in Section 2 and this Section 5 and
shall bear the Private Placement Legend and the Holder of each Transfer
Restricted Security, by such Holder's acceptance thereof, agrees to be bound by
such restrictions on transfer.
(c) The restrictions imposed by Section 2 and this Section 5
upon the transferability of any particular Transfer Restricted Security shall
cease and terminate and the Private Placement Legend shall no longer be
necessary (a) in the case of a Regulation S Global Unit, on the Regulation S
Unit Exchange Date or (b) in the case of a Rule 144A Global Unit or Definitive
Unit, on (x) the later of two years (or such shorter period of time as
permitted by Rule 144(k) under the Securities Act or any successor provision
thereunder) after the later of the Issue Date or the last date on which any
Issuer or any Affiliate of any Issuer was the owner of such Transfer Restricted
Security (or any predecessor of such Transfer Restricted Security) or (y) (if
earlier) if and when such Transfer Restricted Security has been sold pursuant
to an effective registration statement under the Securities Act or, unless the
Holder thereof is an Affiliate of any Issuer, transferred pursuant to Rule 144
or Rule 904 under the Securities Act (or any successor provision). Iridium
shall inform the Unit Agent in writing of the effective date of any
registration statement registering any Transfer Restricted Securities under the
Securities Act.
Any Holder of a Global Unit shall, by acceptance of such
Global Unit, agree that transfers of beneficial interests in such Global Unit
may be effected only through a book-entry
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system maintained by the Holder of such Global Unit (as its agent), and the
ownership of a beneficial interest in the Units may be required to be reflected
in a book-entry.
(d) Transfers to Non-QIB Institutional Accredited
Investors. The following provisions shall apply with respect to the
registration of any proposed transfer of a Transfer Restricted Security to any
institutional "accredited investor" as described in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act ("IAI") which is not a QIB (excluding Non-U.S.
Persons) that is consistent with the Private Placement Legend:
(i) Unit Agent shall register the transfer of any
Unit, whether or not such Unit bears the Private Placement Legend, if
(x) the requested transfer is subsequent to a date which is two years
after the later of the Issue Date and the last date on which any of
the Issuers or an Affiliate of the Issuers was the owner of the Unit
or (y) the proposed transferee has delivered to the Unit Agent a
certificate substantially in the form set forth in Exhibit D hereto.
(ii) If the proposed transferor is an Agent Member
holding a beneficial interest in a Rule 144A Global Unit seeking to
transfer a Definitive Unit to another Person, upon receipt by the Unit
Agent of (x) the documents, if any, required by paragraph (i) and (y)
instructions given in accordance with the Depositary's and the Unit
Agent's procedures therefor, the Unit Agent shall reflect on its books
and records the date and a decrease in the number of Units represented
by such Rule 144A Global Unit in an amount equal to the number of
Units represented by such Rule 144A Global Unit to be transferred, and
the Issuers shall execute, and the Unit Agent shall authenticate and
deliver, one or more Definitive Units of like tenor and amount.
(iii) An IAI which is not a QIB and not a Non-U.S.
Person shall only hold Definitive Units.
(e) Transfers to QIBs. The following provisions shall
apply with respect to the registration of any proposed transfer of a Transfer
Restricted Security to a QIB (excluding Non-U.S. Persons):
(i) If the Units to be transferred consist of (x)
Definitive Units, the Unit Agent shall register the transfer if such
transfer is being made by a proposed transferor who has provided the
Unit Agent with a certificate substantially in the form set forth in
Exhibit E hereto or (y) an interest in the Rule 144A Global Unit, the
transfer of such interest may be effected only through the book-entry
system maintained by the Depositary.
(ii) If the Units to be transferred consist of
Definitive Units, upon receipt by the Unit Agent of (x) the document,
if any, required by paragraph (i) and (y) instructions given in
accordance with the Depositary's and the Unit Agent's procedures
therefor, the Unit Agent shall reflect on its books and records the
date and an increase in the number of Units represented by the Rule
144A Global Unit in an amount equal to the principal amount of the
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Definitive Unit, to be transferred, and the Unit Agent shall cancel
the Definitive Unit so transferred.
(f) Transfers of Interests in the Regulation S Global
Unit to U.S. Persons. The following provisions shall apply with respect to any
transfer of an interest in the Regulation S Global Unit to a U.S. Person:
(i) If the beneficial interest to be transferred is
in a Regulation S Temporary Global Unit, transfers by an owner of a
beneficial interest in such Regulation S Global Unit to a transferee
who takes delivery of such interest through the Rule 144A Global Unit
will be made only upon receipt by the Unit Agent from the transferor
of a certificate substantially in the form set forth in Exhibit E
hereto to the effect that such transfer is being made to a person who
the transferor reasonably believes is a QIB within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A; and
(ii) If the beneficial interest to be transferred is
in a Regulation S Permanent Global Unit, the Unit Agent shall register
the transfer of any such Unit Certificate without requiring any
additional certification.
(g) Transfers to Non-U.S. Persons. The following
provisions shall apply with respect to any transfer of a Unit to a Non-U.S.
Person:
(i) The Unit Agent shall register any proposed
transfer to any Non-U.S. Person if the Unit Certificate to be
transferred is a Definitive Unit or an interest in a Rule 144A Global
Unit only upon receipt of a certificate substantially in the form set
forth in Exhibit F hereto from the proposed transferor. Prior to the
termination of the Regulation S Restricted Period, any Non-U.S. Person
shall be delivered a beneficial interest in the Regulation S Temporary
Global Security.
(ii) (x) If the proposed transferor is an Agent
Member holding a beneficial interest in a Rule 144A Global Unit, upon
receipt by the Unit Agent of (1) the documents required by paragraph
(i) of this paragraph (d) and (2) instructions in accordance with the
Depositary's and the Unit Agent's procedures, the Unit Agent shall
reflect on its books and records the date and a decrease in the number
of Units represented by such Rule 144A Global Unit in an amount equal
to the number of Units represented by the beneficial interest in such
Rule 144A Global Units to be transferred, and (y) upon receipt by the
Unit Agent of instructions given in accordance with the Depositary's
and the Unit Agent's procedures, the Unit Agent shall reflect on its
books and records the date and an increase in the number of Units
represented by the Regulation S Global Units in an amount equal to the
number of Units represented by the Definitive Units or such Rule 144A
Global Unit, as the case may be, to be transferred, and the Unit Agent
shall cancel the Definitive Unit so transferred or decrease the number
of Units represented by such Rule 144A Global Unit, as the case may
be.
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(h) Private Placement Legend. Upon the transfer,
exchange or replacement of Unit Certificates not bearing the legend set forth
in the first three paragraphs of Exhibit A attached hereto (the "Private
Placement Legend"), the Unit Agent shall deliver Unit Certificates that do not
bear the Private Placement Legend. Upon the transfer, exchange or replacement
of Unit Certificates bearing the Private Placement Legend, the Unit Agent shall
deliver Unit Certificates that bear the Private Placement Legend unless either
(i) the Private Placement Legend is no longer required pursuant to Section 2
and Section 5 or (ii) there is delivered to the Registrar an opinion of counsel
reasonably satisfactory to the Issuers and the Unit Agent to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act.
(i) Cancellation and/or Adjustment of a Global Unit. At
such time as all beneficial interests in a Global Unit have either been
exchanged for Definitive Units, redeemed, repurchased or cancelled, such Global
Unit shall be returned to the Issuer or, upon written order to the Unit Agent
in the form of an Officers' Certificate from Iridium, retained and cancelled by
the Unit Agent. At any time prior to such cancellation, if any beneficial
interest in a Global Unit is exchanged for Definitive Units, redeemed,
repurchased or cancelled, the number of Units represented by such Global Unit
shall be reduced and an endorsement shall be made on such Global Unit by the
Unit Agent to reflect such reduction.
(j) Obligations with Respect to Transfers and Exchanges
of Definitive Units.
(i) Prior to the Separability Date, to permit registrations of
transfers and exchanges, the Issuers shall execute, at the
Unit Agent's request, and the Unit Agent shall authenticate
Unit Certificates.
(ii) All Definitive Units and Global Units issued upon any
registration, transfer or exchange of Definitive Units or
Global Units shall be the valid obligations of the Issuers,
entitled to the same benefits under this Unit Agreement as the
Definitive Units or Global Units surrendered upon the
registration of transfer or exchange.
(iii) Prior to due presentment for registration of transfer of any
Unit Certificate, the Unit Agent and the Issuers may deem and
treat the person in whose name any Unit Certificate is
registered as the absolute owner of the Units represented
thereby, and neither the Unit Agent nor the Issuers shall be
affected by notice to the contrary.
SECTION 6. Separation of the Notes and the Warrants. After
the Separability Date, the Notes and the Warrants represented by the Units
shall be separately transferable. Upon presentation after the Separability
Date of any Unit Certificate for exchange for Warrants and Notes or for
registration of transfer or otherwise, (i) the Unit Agent shall notify the
Trustee and the Warrant Agent of the number of Units so presented, the
registered owner thereof, such owner's registered address, the nature of any
legends or restrictive endorsements set forth on such Unit Certificate and any
other information provided by the holder thereof in connection therewith, (ii)
the Trustee, if the requirements of the Indenture for such transaction are met,
as the case may be, shall promptly register, authenticate and deliver a new
Note equal in principal amount to the Notes represented by
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such Unit Certificate in accordance with the direction of such holder and (iii)
the Warrant Agent, if its requirements for such transactions are met, shall
promptly countersign, register and deliver a new Warrant certificate for the
number of Warrants previously represented by such Unit Certificate in
accordance with the directions of such holder. The Warrant Agent and the
Trustee will notify the Unit Agent of any additional requirements in connection
with a particular transfer or exchange.
Following the Separability Date, no Unit Certificates shall be
issued upon transfer or exchange of Unit Certificates or otherwise.
SECTION 7. Rights of Unit Holders. The registered owner of a
Unit Certificate shall have all the rights and privileges of a registered owner
of the principal amount of Notes represented thereby and the number of Warrants
represented thereby and shall be treated as the registered owner thereof for
all purposes. The Issuers agree that they shall be bound by all provisions of
the Indenture, the Notes, the Warrant Agreement and the Warrants and that the
Notes and Warrants represented by each Unit Certificate shall be deemed legal,
valid and binding obligations of the Issuers, and that upon exercise of the
Warrants, the Warrant Shares will be fully paid, nonassessable, free of
preemptive rights and free from all taxes, liens, charges and security
interests with respect to the issue thereof.
SECTION 8. Unit Agent. The Unit Agent undertakes the duties
and obligations imposed by this Agreement upon the following terms and
conditions, by which the Issuers and the holders of Units, by their acceptance
thereof, shall be bound:
(a) The Unit Agent shall not be responsible for and makes
no representation as to the validity or adequacy of this Agreement or
the Unit Certificates and it shall not be responsible for any
statement in this Agreement or the Unit Certificates other than its
countersignature thereon.
(b) The Unit Agent shall not be responsible for any
failure of the Issuers to comply with any of the covenants in this
Agreement, the Unit Certificates, the Indenture, the Notes, the
Warrant Agreement or the Warrant Certificates (as defined in the
Warrant Agreement) to be complied with by the Issuers.
(c) The Unit Agent may consult with counsel satisfactory
to it and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with the
advice of such counsel.
(d) The Unit Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by
it in reliance upon any Unit Certificate, notice, direction, consent,
certificate, affidavit, statement, opinion or other paper or document
reasonably believed by it to be genuine and to have been presented or
signed by the proper parties.
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(e) The Note Issuers agree to pay the Unit Agent from
time to time compensation for its services and to reimburse the Unit
Agent upon request for all reasonable out-of-pocket expenses incurred
by it pursuant to this Agreement, including the reasonable
compensation and expenses of the Unit Agent's agents and counsel. The
Note Issuers shall indemnify the Unit Agent against any and all loss,
liability, damage, claim or expense (including agents' and attorneys'
fees and expenses) incurred by it without negligence or bad faith on
its part arising out of or in connection with the acceptance or
performance of its duties under this Agreement. The Unit Agent shall
notify the Note Issuers promptly of any claim for which it may seek
indemnity. The Note Issuers need not reimburse any expense or
indemnify against any loss or liability incurred by the Unit Agent
through wilful misconduct, negligence or bad faith. The Issuers'
payment obligations pursuant to this Section 8(e) shall survive the
termination of this Agreement.
(f) The Unit Agent and any stockholder, director, officer
or employee of the Unit Agent may buy, sell or deal in any of the
Units or other securities of the Issuers or their affiliates or become
pecuniarily interested in transactions in which the Issuers or their
affiliates may be interested, or contract with or lend money to any of
the Issuers or their affiliates or otherwise act as fully and freely
as though it were not the Unit Agent under this Agreement. Nothing
herein shall preclude the Unit Agent from acting in any other capacity
for the Issuers or for any other legal entity.
(g) The Unit Agent shall act hereunder solely as agent
for the Issuers, the Trustee and the Warrant Agent, and its duties
shall be determined solely by the provisions hereof. The Unit Agent
shall not be liable for anything which it may do or refrain from doing
in connection with this Agreement except for its own negligence or bad
faith or willful misconduct.
(h) The Unit Agent shall not be under any obligation to
take any action hereunder which may tend to involve it in any expense
or liability for which it does not receive indemnity if such indemnity
is reasonably requested.
(i) The Unit Agent shall be under no obligation to
institute any action, suit or legal proceeding or to take any other
action unless the Issuers or one or more registered holders of Unit
Certificates shall furnish the Unit Agent with security and indemnity
for any costs and expenses which may be incurred acceptable to the
Unit Agent. This provision shall not affect the power of the Unit
Agent to take such action as it may consider proper, whether with or
without any such security or indemnity. All rights of action under
this Agreement or under any of the Units may be enforced by the Unit
Agent without the possession of any of the Unit Certificates or the
production thereof at any trial or other proceeding relative thereto,
and any such action, suit or proceeding instituted by the Unit Agent
shall be brought in its name as Unit Agent and any recovery of
judgment shall be for the ratable benefit of the registered holders of
the Units, as their respective rights or interests may appear.
(j) Before the Unit Agent acts or refrains from acting
with respect to any matter contemplated by this Unit Agreement, it may
require:
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12
(1) an Officers' Certificate stating that, in the
opinion of the signers, all conditions precedent, if any,
provided for in this Unit Agreement relating to the proposed
action have been complied with; and
(2) an opinion of counsel for the Issuers stating
that, in the opinion of such counsel, all such conditions
precedent have been complied with.
(k) In the absence of bad faith on its part, the Unit
Agent may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Unit Agent and conforming to the
requirements of this Agreement. However, the Unit Agent shall examine
the certificates and opinions to determine whether or not they conform
to the requirements of this Agreement.
(l) The Unit Agent may rely and shall be fully protected
in relying upon any document believed by it to be genuine and to have
been signed or presented by the proper person. The Unit Agent need
not investigate any fact or matter stated in the document.
(m) The Unit Agent may act through agents and shall not
be responsible for the misconduct or negligence of any agent appointed
with due care.
SECTION 9. Replacement of Unit Agent. The Unit Agent may
resign by so notifying the Issuers. The holders of a majority of all the
outstanding Units may remove the Unit Agent by so notifying the Issuer and the
Unit Agent and may appoint a successor Unit Agent. The Issuers may remove the
Unit Agent if:
(1) the Unit Agent is adjudged bankrupt or
insolvent;
(2) a receiver or other public officer takes
charge of the Unit Agent or its property; or
(3) the Unit Agent becomes incapable of acting.
If the Unit Agent resigns or is removed or if a vacancy exists
in the office of the Unit Agent for any reason, the Issuers shall notify each
holder of Units of such event and shall promptly appoint a successor Unit
Agent. Notwithstanding any resignation or removal of the Unit Agent or the
cancellation of the Unit Certificates, the obligations of the Issuers under
Section 8(e) shall survive for the benefit of the retiring Unit Agent.
SECTION 10. Successor Unit Agent by Merger, Etc. If the Unit
Agent consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
resulting, surviving or transferee corporation without any further act shall,
if such resulting, surviving or transferee corporation is otherwise eligible
hereunder, be the successor Unit Agent.
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13
SECTION 11. Notices to the Issuer and Unit Agent, Trustee and
Warrant Agent. Any notice or demand authorized by this Agreement to be given
or made to or on the Issuers, the Unit Agent, the Trustee or the Warrant Agent
shall be sufficiently given or made when and if deposited in the mail, first
class or registered, postage paid, addressed
If to the Issuers:
c/o Iridium LLC
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
Attention: General Counsel
with a copy to:
Iridium World Communications Ltd.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
Attention: Secretary
If to the Unit Agent, the Warrant Agent or the Trustee:
State Street Bank and Trust Company
Corporate Trust Department
▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
The parties hereto by notice to the other parties may
designate additional or different addresses for subsequent communications or
notice.
Any notice to be mailed to a holder of Units shall be mailed
to him or her at the address that appears on the register of Units maintained
by the Unit Agent. Copies of any such communication shall also be mailed to
the Unit Agent, the Trustee and the Warrant Agent. The Unit Agent shall
furnish the Issuers, the Trustee or the Warrant Agent promptly when requested
with a list of registered holders of Units for the purpose of mailing any
notice or communication to the holders of the Notes or Warrants and at such
other times as may be reasonably requested.
SECTION 12. Supplements and Amendments. The Issuers, the
Unit Agent, the Trustee and the Warrant Agent may from time to time supplement
or amend this Agreement without the approval of any holders of Unit
Certificates in order to cure any ambiguity or to correct or supplement any
provision contained herein which may be defective or inconsistent with any
other
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14
provision herein, or to make any other provisions in regard to matters or
questions arising hereunder which the Issuers, the Trustee, the Warrant Agent
and the Unit Agent may deem necessary or desirable and which shall not
adversely affect the interests of the holders of Unit Certificates. Any
amendment or supplement to this Agreement that may have an adverse effect on
the interests of the holders of Units shall require the written consent of a
majority of the registered holders of the then outstanding Units representing
not less than a majority of the then outstanding Units.
SECTION 13. Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Issuers, the Trustee, the Warrant
Agent or the Unit Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
SECTION 14. Governing Law. THIS AGREEMENT AND EACH UNIT
CERTIFICATE ISSUED HEREUNDER SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE
LAWS OF THE STATE OF NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SAID STATE, WITHOUT REGARD TO THE CONFLICT OF LAW
RULES THEREOF.
SECTION 15. Benefits of This Agreement. Nothing in this
Agreement shall be construed to give to any person or corporation other than
the Issuers, the Trustee, the Warrant Agent, the Unit Agent and the holders of
Units any legal or equitable right, remedy or claim under this Agreement; but
this Agreement shall be for the sole and exclusive benefit of the Issuers, the
Trustee, the Warrant Agent, the Unit Agent and the holders of Units.
SECTION 16. Counterparts. This Agreement may be executed in
any number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the day and year first above written.
IRIDIUM LLC
By:
------------------------------
Name:
Title:
IRIDIUM CAPITAL CORPORATION
By:
------------------------------
Name:
Title:
IRIDIUM WORLD COMMUNICATIONS LTD.
By:
------------------------------
Name:
Title:
IRIDIUM ROAMING LLC,
as a Guarantor Subsidiary
By:
------------------------------
Name:
Title:
IRIDIUM IP LLC,
as a Guarantor Subsidiary
By:
------------------------------
Name:
14
16
Title:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as Warrant Agent
By:
------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as Unit Agent
By:
------------------------------
Name:
Title:
15
17
EXHIBIT A
[FORM OF UNIT CERTIFICATE]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE
(THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH
THE ISSUERS OR ANY AFFILIATE OF THE ISSUERS WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), EXCEPT (A) TO THE
ISSUERS, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFSHORE TRANSACTIONS
MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 UNDER THE SECURITIES
ACT, (E) TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN
INSTITUTIONAL INVESTOR ACQUIRING THE SECURITY IN A TRANSACTION EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (IF
AVAILABLE) OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND, IN EACH CASE (A)
THROUGH (F), IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
STATES OF THE UNITED STATES AND OTHER JURISDICTIONS AND SUBJECT TO THE
ISSUERS' AND THE UNIT AGENT'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO
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EACH OF THEM, AND IN THE CASE OF ANY OF THE FOREGOING CLAUSES (A)
THROUGH (F), A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE ISSUERS AND THE UNIT AGENT. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
BY ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT IT IS NOT AN
AFFILIATE OF THE ISSUERS OR ACTING ON BEHALF OF THE ISSUERS AND (A) IT
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1),(2),(3) OR (7) UNDER THE
SECURITIES ACT) OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE
SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S.
IRIDIUM LLC,
(a limited liability company)
IRIDIUM CAPITAL CORPORATION,
(a Delaware corporation)
IRIDIUM WORLD COMMUNICATIONS LTD.
(a Bermuda company)
Units Consisting of 13% Senior Notes due 2005,
Series A and Warrants to
Purchase Shares of Class A Common Stock
No. CUSIP No.
----------
Iridium LLC, a Delaware limited liability company ("Iridium"),
Iridium Capital Corporation, a Delaware corporation ("Capital"), Iridium World
Communications Ltd., an exempted company under the Companies ▇▇▇ ▇▇▇▇ of
Bermuda ("IWCL"), Iridium Roaming LLC and Iridium IP LLC (together, the
"Guarantor Subsidiary" and together with Iridium, Capital and IWCL, the
"Issuers") hereby certify that [___________________________] is the owner of
[____________] Units as described above.
Each Unit consists of one $1,000 principal amount of 13%
Senior Notes due 2005, Series A of the Issuers (the "Notes") and one warrant
(the "Warrant"), initially entitling the holder thereof to purchase 5.2 shares
of Class A Common Stock, par value $0.01 per share, of
19
IWCL (the "Class A Common Stock"). This Unit is issued pursuant to the Unit
Agreement (the "Unit Agreement") dated as of July 16, 1997 by and among the
Issuers, the Trustee (as defined below), State Street Bank and Trust Company as
trustee under an Indenture with respect to the 13% Senior Notes due 2005,
Series A of Iridium and Capital, the Warrant Agent (as defined below) and State
Street Bank and Trust Company, as Unit Agent (the "Unit Agent"), and is subject
to the terms and provisions contained therein, to all of which terms and
provisions the holder of this Unit Certificate consents by acceptance hereof.
The terms of the Notes are governed by an Indenture (the "Indenture") dated as
of July 16, 1997 among Iridium, Capital, the Guarantor Subsidiaries and State
Street Bank and Trust Company, as trustee (the "Trustee"), and are subject to
the terms and provisions contained therein, to all of which terms and
provisions the holder of this Unit Certificate consents by acceptance hereof.
The terms of the Warrants are governed by a Warrant Agreement dated as of July
16, 1997 (the "Warrant Agreement") between IWCL and State Street Bank and Trust
Company, as Warrant Agent (the "Warrant Agent"), and are subject to the terms
and provisions contained therein, to all of which terms and provisions the
holder of this Unit Certificate consents by acceptance hereof. The Issuers
will furnish to any Holder of this Unit Certificate upon written request and
without charge a copy of the Unit Agreement, the Indenture and the Warrant
Agreement. Requests may be made to: Iridium LLC, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇.▇.,
▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇, Attn.: General Counsel.
The Notes and the Warrants represented by this Unit
Certificate shall not be separately transferable until the earlier of: the
commencement of an exchange offer or the effectiveness of a shelf registration
statement for the Notes and such date after January 15, 1998 as Chase
Securities Inc. may, in its discretion, deem appropriate.
Dated:
IRIDIUM LLC
By:
------------------------------
Name:
Title:
IRIDIUM CAPITAL CORPORATION
By:
------------------------------
Name:
Title:
20
IRIDIUM WORLD COMMUNICATIONS LTD.
By:
------------------------------
Name:
Title:
IRIDIUM ROAMING LLC,
as a Guarantor Subsidiary
By:
------------------------------
Name:
Title:
IRIDIUM IP LLC,
as a Guarantor Subsidiary
By:
------------------------------
Name:
Title:
Certificate of Authentication:
This is one of the Units
referred to in the above
mentioned Unit Agreement.
STATE STREET BANK AND TRUST COMPANY,
as Unit Agent
By:
------------------------------
Authorized Signatory
▇▇
▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ WORLD COMMUNICATIONS LTD.
Units Consisting of 13% Senior Notes due 2005,
Series A and Warrants to
Purchase Shares of Class A Common Stock
I. PROVISIONS RELATING TO THE NOTES
1. Interest.
IRIDIUM LLC, a Delaware limited liability company ("Iridium") and
IRIDIUM CAPITAL CORPORATION, a Delaware corporation ("Capital" and together
with Iridium, the "Note Issuers"), as joint and several obligors, and IRIDIUM
ROAMING LLC and IRIDIUM IP LLC (together, the "Guarantor Subsidiaries", and
together with the Note Issuers, the "Issuers"), promise to pay interest on the
principal amount of the Notes at the rate per annum shown above. The Note
Issuers will pay interest in cash semi-annually in arrears on January 15 and
July 15 of each year (each an "Interest Payment Date"), commencing January 15,
1998. Interest payable on the Notes shall be computed on the basis of a
360-day year comprised of 30-day months.
2. Method of Payment.
The Note Issuers shall pay interest on the Notes (except
defaulted interest) to the persons who are the registered holders at the close
of business on the Record Date immediately preceding the interest payment date
even if the Notes are cancelled on registration of transfer or registration of
exchange after such Record Date. Holders must surrender the Notes to the
Trustee to collect principal payments. The Note Issuers shall pay principal
and interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts ("U.S. Legal Tender"). However,
the Note Issuers may pay principal and interest by wire transfer of Federal
funds, or interest by check payable in such U.S. Legal Tender. The Note
Issuers may deliver any such interest payment to the Trustee or to a holder at
the holder's registered address.
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3. Paying Agent and Registrar
Initially, STATE STREET BANK AND TRUST COMPANY, a
Massachusetts banking corporation ("Trustee"), will act as Paying Agent and
Registrar. Iridium may appoint and change any Paying Agent, Registrar or
co-registrar without notice to the Holders. Iridium, Capital or any of
Iridium's domestically incorporated Wholly-Owned Subsidiaries may act as Paying
Agent, Registrar or co-registrar.
4. Indenture and Guarantees.
The Note Issuers issued the Notes under an Indenture dated
as of July 16, 1997 (the "Indenture"), among the Note Issuers, as joint and
several obligors, the Guarantor Subsidiaries (as defined in the Indenture) and
the Trustee. Capitalized terms used in this "Provisions Relating to the Notes"
section are used as defined in the Indenture unless otherwise defined herein.
The terms of the Notes include those stated in the Indenture and those made
part of such Indenture by reference to the Trust Indenture Act of 1939 (15
U.S.C. Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date of the
Indenture until such time as the Indenture is qualified under the TIA, and
thereafter as in effect on the date on which the Indenture is qualified under
the TIA. Notwithstanding anything to the contrary herein, the Notes are
subject to all such terms, and holders of Notes are referred to the Indenture
and the TIA for a statement of them. The Notes are obligations of the Note
Issuers limited in aggregate principal amount to $300,000,000. Payment on each
Note is guaranteed on a senior basis, jointly and severally, by the Guarantor
Subsidiaries pursuant to Article X of the Indenture.
5. Optional Redemption.
Except as described in the next succeeding paragraph, the
Notes will not be redeemable at the option of the Note Issuers prior to July
15, 2002. On and after such date, the Notes will be redeemable, at either Note
Issuer's option, in whole or in part, at any time upon not less than 30 nor
more than 60 days' prior notice mailed by first-class mail to each Holder's
registered address, at the following redemption prices (expressed in
percentages of principal amount), plus accrued and unpaid interest and
Liquidated Damages, if any, to the redemption date (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date that is on or prior to the date of redemption),
if redeemed during the 12-month period commencing on July 15 of the years set
forth below:
REDEMPTION
YEAR PRICE
---- -----
2002 106.750%
2003 103.375%
2004 and thereafter 100.000%
In addition, at any time and from time to time on or prior to
July 15, 2000, either Note Issuer may redeem in the aggregate up to 33-1/3% of
the original aggregate principal
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amount of the Notes with the cash proceeds to Iridium of one or more Equity
Offerings, at a redemption price (expressed as a percentage of principal amount
thereof) of 113.5% plus accrued and unpaid interest and Liquidated Damages, if
any, to the redemption date (subject to the right of record Holders on the
relevant record date to receive interest due on the relevant interest payment
date that is on or prior to the date of redemption); provided, however, that at
least 66-2/3% of the original aggregate principal amount of the Notes must
remain outstanding after each such redemption.
6. Notice of Redemption.
In the case of any partial redemption, selection of the Notes
for redemption will be made by the Trustee on a pro rata basis, by lot or by
such other method as the Trustee in its sole discretion deems to be fair and
appropriate, although no Note of $1,000 in original principal amount or less
will be redeemed in part. If any Note is to be redeemed in part only, the
notice of redemption relating to such Note will state the portion of the
principal amount thereof to be redeemed. A new Note in principal amount equal
to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Note.
7. Subsidiary Guaranties.
The Initial Guarantors will provide Subsidiary Guaranties on
the Issue Date. In the event that, after the Issue Date, Iridium acquires or
creates a Subsidiary other than a Foreign Subsidiary, Iridium will cause such
Subsidiary (unless such Subsidiary is an Unrestricted Subsidiary) to, jointly
and severally, as primary obligors and not merely as sureties, irrevocably
Guarantee on a senior unsecured basis the performance and punctual payment when
due, whether at Stated Maturity, by acceleration or otherwise, of all
obligations of the Note Issuers under the Indenture and the Notes issued
pursuant thereto. Iridium may cause any Foreign Subsidiary to execute and
deliver a Subsidiary Guaranty in accordance with the provisions of the
Indenture, in which case such Foreign Subsidiary will be a "Guarantor
Subsidiary" for purposes of the Indenture. Each Subsidiary Guaranty will be
limited in amount to an amount not to exceed the maximum amount that can be
Guaranteed by the applicable Guarantor Subsidiary without rendering such
Subsidiary Guaranty voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.
A Subsidiary Guaranty will be released upon (i) the sale of
all of the Capital Stock, or all or substantially all of the assets, of the
applicable Guarantor Subsidiary (in each case to an entity other than to
Iridium or a Subsidiary of Iridium), (ii) the designation by Iridium of the
applicable Guarantor Subsidiary as an Unrestricted Subsidiary, in each case in
compliance with the Indenture, or (iii) the reorganization of the applicable
Guarantor Subsidiary as a Foreign Subsidiary, or (iv) upon satisfaction of the
requirements of Section 5.01(d) (merger) or 8.01(b) (defeasance) of the
Indenture.
8. Change of Control Offer.
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Upon the occurrence of a Change of Control, each Holder will
have the right to require the Note Issuers to repurchase all or any part of
such Holder's Notes at a purchase price in cash equal to 101% of the principal
amount of the Notes, plus accrued and unpaid interest and Liquidated Damages,
if any, to the date of purchase.
9. Denominations; Transfer; Exchange.
The Notes are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer
or exchange Notes in accordance with the Indenture. Upon any transfer or
exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the Note
Issuers may require a Holder to pay any taxes required by law or permitted by
the Indenture. The Note Issuers are not required to transfer or exchange any
Note selected for redemption or to transfer or exchange any Note for a period
of 15 days prior to a selection of Notes to be redeemed. The Notes will be
issued in registered form and the registered holder of a Note will be treated
as the owner of such Note for all purposes.
10. Persons Deemed Owners
The registered Holder of the Note may be treated as the owner
of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall, subject to the
requirements of applicable escheat laws, pay the money back to the Note Issuers
at its written request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only
to the Note Issuers and not to the Trustee for payment.
12. Legal Defeasance and Covenant Defeasance.
The Note Issuers at any time may terminate all their
obligations under the Notes and the Indenture upon satisfaction of certain
conditions specified in the Indenture, except for certain obligations,
including those respecting the defeasance trust and obligations to register the
transfer or exchange of the Notes, to replace mutilated, destroyed, lost or
stolen Notes and to maintain a registrar and paying agent in respect of the
Notes. The Note Issuers at any time may terminate their obligations under
certain restrictive covenants. If the Note Issuers exercise their legal
defeasance option or their covenant defeasance option, each Guarantor
Subsidiary will be released from all of its obligations with respect to its
Subsidiary Guaranty (and no Restricted Subsidiary (other than Capital) will
thereafter be obligated to execute, deliver, or endorse any Note; nor shall any
such execution, delivery or endorsement thereafter bind any Restricted
Subsidiary).
13. Amendment and Waiver.
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Subject to certain exceptions, the Indenture may be amended
with the consent of the Holders of a majority in principal amount of the Notes
then outstanding and any past default and its consequences or compliance with
any provisions may be waived with the consent of the Holders of a majority in
principal amount of the Notes then outstanding. Without the consent of any
Holder, the Note Issuers and the Trustee may amend the Indenture to cure any
ambiguity, omission, defect or inconsistency, to provide for the assumption by
a successor corporation of the obligations of either Note Issuer under the
Indenture, to provide for uncertificated Notes in addition to or in place of
certificated Notes, to add further Subsidiary Guaranties with respect to such
Notes, to release Guarantor Subsidiaries when permitted by such Indenture, to
secure such Notes, to add to the covenants of the Note Issuers for the benefit
of the Holders of such Notes or to surrender any right or power conferred upon
the Note Issuers, to make any change that does not adversely affect the rights
of any Holder of such Notes or to comply with any requirement of the SEC in
connection with the qualification of such Indenture under the TIA.
14. Restrictive Covenants.
The Indenture contains certain covenants that, among other
things, limit the ability of Iridium and its Restricted Subsidiaries to make
restricted payments, to incur indebtedness, to create liens, to issue capital
stock of subsidiaries, to sell assets, to permit restrictions on dividends and
other payments by subsidiaries to Iridium, to consolidate, merge or sell all or
substantially all of its assets, to engage in transactions with affiliates, to
maintain insurance or to engage in certain businesses. The limitations are
subject to a number of important qualifications and exceptions. The Note
Issuers must report to the Trustee on compliance with such limitations.
15. Defaults and Remedies.
If an Event of Default under the Indenture occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the outstanding Notes by notice to the Note Issuers may declare the principal
of and accrued but unpaid interest on and Liquidated Damages, if any, on all
the Notes to be due and payable. If an Event of Default relating to certain
events of bankruptcy, insolvency or reorganization of either Note Issuer occurs
and is continuing, the principal of and Liquidated Damages, if any, and
interest on all the Notes will become immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders. Holders of
Notes may not enforce the Indenture or the Notes except as provided in the
Indenture. Under certain circumstances, the Holders of a majority in principal
amount of the Notes then outstanding may rescind any such acceleration with
respect to the Notes and its consequences.
16. No Recourse Against Others.
No director, officer, employee, incorporator or member of
Iridium, as such, will have any liability for any obligations of the Note
Issuers or any Guarantor Subsidiary under the Notes or the Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each holder of Notes by accepting a Note waives and releases all
such liability
5
26
(such waiver will not constitute a waiver of liabilities under the Federal
securities laws, however, if it is the view of the SEC that such a waiver would
be against public policy).
17. Registration Rights.
Pursuant to the Exchange and Registration Rights Agreement,
the Issuers will be obligated upon the occurrence of certain events to
consummate an exchange offer pursuant to which the holders of Notes shall,
subject to certain limitations, have the right to exchange the Notes for the
Exchange Notes or Private Exchange Series A Notes, which will be registered
under the Securities Act, in like principal amount and having terms identical
in all material respects as the Notes. The Holders shall be entitled to
receive certain liquidated damages in the event such exchange offer is not
consummated and upon certain other conditions, all pursuant to and in
accordance with the terms of the Exchange and Registration Rights Agreement.
18. Trustee Dealings with the Note Issuers
Subject to certain limitations imposed by the Act, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with and collect obligations
owed to it by the Note Issuers or its Affiliates and may otherwise deal with
the Note Issuers or its Affiliates with the same rights it would have if it
were not Trustee.
19. Governing Law
THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
20. Authentication
The Note shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of the Note.
21. Abbreviations
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
22. CUSIP Numbers
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27
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Note Issuers have caused CUSIP
numbers to be printed on the Notes and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Issuers will furnish to any holder of a Note upon written
request and without charge a copy of the Indenture. Requests may be made to:
Iridium LLC, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇, Attention: General
Counsel.
II. PROVISIONS RELATING TO THE WARRANTS
Each Warrant evidenced by each Unit Certificate, when
exercised, will entitle the holder thereof to receive 5.2 Warrant Shares of
IWCL. In the aggregate, the Warrants will entitle the holders thereof to
purchase 1,560,000 shares of Class A Common Stock of IWCL representing, on a
fully-diluted basis, an aggregate indirect beneficial ownership of
approximately 1% of the Class 1 Interests in Iridium, as of the date of the
Offering Memorandum. The Warrants are issued pursuant to a Warrant Agreement
dated as of July 16, 1997 (the "Warrant Agreement"), duly executed and
delivered by IWCL and State Street Bank and Trust Company, as Warrant Agent
(the "Warrant Agent"), which Warrant Agreement is hereby incorporated by
reference in and made a part of this instrument. Terms used in this
"Provisions Relating to the Warrants" section and not defined herein shall have
the respective meanings ascribed to those terms in the Warrant Agreement.
The Warrants may be exercised by surrendering to IWCL the
Warrant certificates evidencing such Warrants, if any, with the accompanying
form of election to purchase, properly completed and executed, together with
payment of the Exercise Price. Payment of the Exercise Price may be made in
the form of cash or a certified or official bank check payable to the order of
IWCL or by wire transfer of funds to an account designated by IWCL. Upon
surrender of the Warrant certificate and payment of the Exercise Price, IWCL
will cause The Bank of New York, as Transfer Agent of the Class A Common Stock,
or any successor thereto, to countersign and deliver, to or upon the written
order of such holder, certificates representing the number of whole Warrant
Shares or other securities or property to which such holder is entitled under
the Warrants and Warrant Agreement, including, without limitation, any cash
payable to adjust for fractional interests in Warrant Shares issuable upon such
exercise. If at any time prior to the Expiration Date less than all of the
Warrants evidenced by a Warrant certificate are to be exercised, a new Warrant
certificate will be issued for the remaining number of Warrants.
No fractional Warrant Shares will be issued upon exercise of
the Warrants. If any fraction of a Warrant Share would, except for the
foregoing provision, be issuable upon the
7
28
exercise of any Warrants (or specified portion thereof), IWCL will pay an
amount in cash equal to the current market price per Warrant Share, as
determined on the day immediately preceding the date the Warrant is presented
for exercise, multiplied by such fraction, computed to the nearest whole cent.
The Warrants initially will be issued as fully registered in
global form or in certain limited circumstances registered form as definitive
Warrant certificates. No service charge will be made for registration of
transfer or exchange upon surrender of any Warrant certificate at the office of
the Warrant Agent maintained for that purpose. IWCL may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration or transfer or exchange of Warrant
certificates.
In the event a bankruptcy or reorganization proceeding is
commenced by or against IWCL, a bankruptcy court may hold that unexercised
Warrants are executory contracts which may not, even if sufficient funds are
available, be entitled to receive any consideration or may receive an amount
less than they would be entitled to have received if they had exercised their
Warrants prior to the commencement of any such bankruptcy or reorganization
proceeding.
The holders of the Warrants have no right to vote on matters
submitted to the stockholders of IWCL and have no right to receive cash
dividends. The holders of the Warrants have no preemptive rights and are not
entitled to share in the assets of IWCL in the event of the liquidation,
dissolution or winding up of IWCL's affairs.
The Warrants and the Warrant Shares are entitled to the
benefits of two shelf registration statements relating to the Warrants and the
shares of Class A Common Stock issuable upon exercise thereof. A warrant shelf
registration statement, covering the resale of the Warrants, and a common shelf
registration statement, covering the issuance of the Warrant Shares, must be
declared effective under the Securities Act within 365 days after the Issue
Date.
8
29
ASSIGNMENT FORM
I or we assign and transfer the Units represented by this Unit Certificate to
---------------------------------------------------------------
---------------------------------------------------------------
(Print or type name, address and zip code of assignee or transferee)
---------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint ,
---------------------------------------
agent to transfer this Unit Certificate on the books of the Unit Agent and
Company. The agent may substitute another to act for him.
Dated:
---------------------
Signed:
----------------------------
(Sign exactly as name
appears on the first page
of this Unit Certificate)
Signature Guarantee:
---------------------------------------------
Participant in a recognized Signature [Guarantee Medallion
Program] (or other signature guarantor program reasonably
acceptable to the Unit Agent)
30
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have the Notes represented hereby
purchased by the Note Issuers pursuant to Section 4.06 or Section 4.08 of the
Indenture, check the appropriate box:
Section 4.06 [ ] Section 4.08 [ ]
If you want to elect to have only part of the Notes
represented hereby purchased by the Note Issuers pursuant to Section 4.06 or
Section 4.08 of the Indenture, state the amount:
$
----------------------
Date:
------------------
Your Signature:
------------------------
(Sign exactly as your name appears on the first page of this
Unit Certificate)
Signature Guarantee:
---------------------------------------------
31
FORM OF ELECTION TO PURCHASE WARRANT SHARES (to be
executed only upon exercise of Warrants)
IRIDIUM WORLD COMMUNICATIONS LTD.
[No exercise of Warrants may be made prior to a shelf registration statement
relating to the Class A Common Stock underlying the Warrants being declared
effective.]
The undersigned hereby irrevocably elects to exercise [____] Warrants at an
exercise price per share (subject to adjustment) of $[ ] to acquire [____]
shares of Class A Common Stock, par value $0.01 per share, of Iridium World
Communications Ltd. on the terms and conditions specified within the Warrant
Certificate and the Warrant Agreement therein referred to, surrenders this
Warrant Certificate and all right, title and interest therein to Iridium World
Communications Ltd. and directs that the shares of Class A Common Stock
deliverable upon the exercise of such Warrants be registered or placed in the
name and at the address specified below and delivered thereto.
Date:
(Signature of Owner)
-------------------------------------
(Street Address)
-------------------------------------
-------------------------------------
(City) (State) (Zip Code)
Signature Guaranteed by:
32
[Signature must be guaranteed by an eligible Guarantor
Institution (banks, stock brokers, savings and loan
associations and credit unions) with membership in an
approved guarantee medallion program pursuant to Securities
and Exchange Commission Rule 17Ad-5]
-----
1. The signature must correspond with the name as written upon
the face of the Warrant Certificate in every particular,
without alteration or enlargement or any change whatsoever,
and must be guaranteed.
2
33
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
---------------------------------------------
Street Address:
-----------------------------------
City, State and Zip Code:
-------------------------
Any unexercised Warrants represented by the Warrant Certificate to be issued
to:
Please insert social security or identifying number:
Name:
---------------------------------------------
Street Address:
-----------------------------------
City, State and Zip Code:
-------------------------
3
34
SCHEDULE OF INCREASES AND DECREASES IN THE NUMBER
OF UNITS REPRESENTED BY GLOBAL UNIT(1)
Number of
Units Repres-
ented by
Decrease in Increase in this Global
Number of Number of Unit Signature of
Units Repre- Units Repre- following authorized
Date of sented by this sented by this such decrease officer of
Exchange Global Unit Global Unit or increase Unit Agent
-----------------------------------------------------------------------------------------------------------------------------------
--------------------
(1) This is to be included only if the Unit Certificate is
in global form.
4
35
EXHIBIT B
FORM OF LEGEND FOR GLOBAL UNIT
Any Global Unit authenticated and delivered hereunder shall
bear a legend in substantially the following form:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUERS
OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL UNIT SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
WARRANT AGREEMENT REFERRED TO HEREIN.
36
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED
UPON TERMINATION OF RESTRICTED PERIOD
[__], 1997
Iridium LLC
Iridium World Communications Ltd.
State Street Bank and Trust Company
Corporate Services Division
▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Iridium LLC Units (the "Units")
Ladies and Gentlemen:
This letter relates to Units represented by a temporary global
unit certificate (the "Temporary Certificate"). Pursuant to Section 2 of the
Unit Agreement dated as of July 16, 1997 relating to the Units (the "Unit
Agreement"), the undersigned hereby certifies that (1) the undersigned is the
beneficial owner of [_____] Units represented by the Temporary Certificate and
(2) the undersigned is a non-U.S. person (as defined in the Unit Agreement)
outside the United States to whom the initial units could be transferred in
accordance with Rule 904 of Regulation S promulgated under the Securities Act
of 1933, as amended. Accordingly, you are hereby requested to transfer the
initial Units represented by the Temporary Certificate into a permanent global
certificate, all in the manner provided by the Unit Agreement.
37
You and Iridium LLC are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate
have the meanings set forth in Regulation S.
Very truly yours,
[NAME OF HOLDER]
By:
-------------------------------
Name:
Title:
2
38
EXHIBIT D
FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS TO
NON-QIB INSTITUTIONAL ACCREDITED INVESTORS
Iridium LLC
Iridium World Communications Ltd.
State Street Bank and Trust Company
Corporate Services Division
▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Iridium LLC ("Iridium") Units
Ladies and Gentlemen:
Reference is hereby made to the Unit Agreement, dated as of
July 16, 1997 (the "Unit Agreement") among Iridium LLC, Iridium Capital
Corporation, Iridium World Communications Ltd., Iridium Roaming LLC, Iridium IP
LLC and State Street Bank and Trust Company, as Unit Agent.
This certificate is delivered to request a transfer of Units
(the "Units").
Upon transfer, the Units would be registered in the name of
the new beneficial owner as follows:
Name:
------------------------------
Address:
---------------------------
Taxpayer ID Number:
----------------
The undersigned represents and warrants to Iridium World
Communications Ltd., Iridium LLC, Iridium Capital Corporation and each
subsidiary of Iridium which has guaranteed its 13% Senior Notes due 2005,
Series A or its 14% Senior Notes due 2005, Series B (together the "Iridium
Parties") that (terms used herein that are defined in Rule 144A ("Rule 144A"),
Regulation D ("Regulation D") or Regulation S ("Regulation S") under the
Securities Act are used herein as defined therein):
39
1. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended, (the "Securities Act")) and have purchased the Units in a transaction
exempt from the registration requirements of the Securities Act. We have such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risk of our investment in the Units and invest in or
purchase securities similar to the Units in the normal cause of our business.
We and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.
2. We understand that the Units have not been registered
under the Securities Act and, unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on behalf
of any investor account for which we are purchasing Units to offer, sell or
otherwise transfer such Units prior to the date which is two years after the
later of the date of original issue and the last date on which any Iridium
Party or any affiliate of any Iridium Party was the owner of such Units (or any
predecessor thereto) (the "Resale Restriction Termination Date") only (a) an
Iridium Party, (b) pursuant to a registration statement which has been declared
effective under the Securities Act, (c) in a transaction complying with the
requirements of Rule 144A under the Securities Act, to a person we reasonably
believe is a qualified institutional buyer under Rule 144A (a "QIB") that
purchases for its own account or for the account of a QIB and to whom notice is
given that the transfer is being made in reliance on Rule 144A, (d) pursuant to
offshore transactions meeting the requirements of Rule 903 or Rule 904 under
the Securities Act, (e) to an institutional "accredited investor" within the
meaning Rule 501(a)(1), (2), (3) or (7) under the Securities Act in a
transaction exempt from the registration requirements of the Securities Act (if
available), (f) pursuant to any other available exemption from the registration
requirements of the Securities Act, and, in each case (a) through (f), in
accordance with all applicable securities laws of the states of the United
States and other jurisdictions. The foregoing restrictions on resale will not
apply subsequent to the Resale Restriction Termination Date. If any resale or
other transfer of the Units is proposed to be made pursuant to the clause (e)
above prior to the Resale Restrictions Termination Date, we shall deliver a
letter from the transferee substantially in the form of this letter to the
Iridium Parties and the Unit Agent, which shall provide, among other things,
that the transferee is an institutional "accredited investor" within the
meaning of Rule 5.01(a)(1), (2), (3) or (7) under the Securities Act and that
it is acquiring such Units for investment purposes and not for distribution in
violation of the Securities Act. Each purchaser acknowledges that each Iridium
Party and the Unit Agent reserve the right prior to any offer, sale or other
transfer prior to the Resale Restriction Termination Date of the Units pursuant
to clauses (d), (e) or (f) above to require the delivery of an opinion of
counsel, certifications and/or other information satisfactory to the Iridium
Parties and the Unit Agent.
TRANSFEREE:
--------------------
BY:
----------------------------
2
40
EXHIBIT E
FORM OF TRANSFER CERTIFICATE FOR
TRANSFER TO RULE 144A GLOBAL UNIT
BEARING A SECURITIES ACT LEGEND
Iridium LLC
Iridium World Communications Ltd.
State Street Bank and Trust Company
Corporate Services Division
▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Iridium LLC Units (the "Units")
Ladies and Gentlemen:
Reference is hereby made to the Unit Agreement, dated as of
July 16, 1997 (the "Unit Agreement") among Iridium LLC, Iridium Capital
Corporation, Iridium World Communications Ltd., Iridium Roaming LLC, Iridium IP
LLC and State Street Bank and Trust Company, as Unit Agent. Capitalized terms
used but not defined herein will have the meanings given to them in the Unit
Agreement.
This letter relates to Units which are held in [the form of a
beneficial interest in the Regulation S Temporary Global Unit (CINS No.
__________) with the Depositary in the name of the undersigned] [definitive
form].
The undersigned has requested transfer of such Units to a
Person who will take delivery thereof in the form of a beneficial interest in
the Rule 144A Global Unit (CUSIP No. ___________). In connection with such
transfer, the undersigned does hereby confirm that such transfer has been
effected in accordance with the transfer restrictions set forth in the Unit
Agreement and the Unit Certificates and pursuant to and in accordance with Rule
144A under the U.S. Securities Act of 1933, as amended, and accordingly, the
undersigned represents that:
1
41
2
1. the Units are being transferred to a transferee that
the undersigned reasonably believes is purchasing the Units for its
own account or one or more accounts with respect to which the
transferee exercises sole investment discretion; and
2. the undersigned reasonably believes that transferee
and any such account is a "qualified institutional buyer" within the
meaning of Rule 144A, in a transaction meeting the requirements of
Rule 144A and in accordance with any applicable securities laws of any
state of the United States or any other jurisdiction.
[NAME OF TRANSFEROR]
By:
---------------------------
Name:
Title:
Dated:
-----------------------
2
42
EXHIBIT F
FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S
Iridium LLC
Iridium World Communications Ltd.
State Street Bank and Trust Company
Corporate Services Division
▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Iridium LLC Units (the "Units")
Ladies and Gentlemen:
Reference is hereby made to the Unit Agreement, dated as of
July 16, 1997 (the "Unit Agreement") among Iridium LLC, Iridium Capital
Corporation, Iridium World Communications Ltd., Iridium Roaming LLC, Iridium IP
LLC and State Street Bank and Trust Company, as Unit Agent.
In connection with our proposed sale of units (the "Units"),
the undersigned confirms that such sale has been effected pursuant to and in
accordance with Regulation S under the Securities Act of 1933, as amended, and,
accordingly, the undersigned represents that:
(1) the offer of the Units was not made to a U.S. Person;
(2) either (a) at the time of the buy order was
originated, the transferee was outside the United States or the
undersigned and any person acting on our behalf reasonably believed
that the transferee was outside in the United States or (b) the
transaction was executed in, on or through the facilities of a
designated off-shore securities market and neither the undersigned nor
any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the
United States in contravention of the requirements of the requirements
of Rule 903(b) or Rule 904(b) of Regulation S, as applicable; and
1
43
2
(4) the transaction is not part of a plan or scheme to
evade the registration requirements of the U.S. Securities Act of
1933, as amended.
In addition, if the sale is made during the restricted period applicable to the
Units and the provisions of Rule 903(c)(2) or Rule 904(c)(1) of Regulation S
are applicable thereto, the undersigned confirms that such sale has been made
in accordance with the applicable provisions of Rule 903(c)(3) or Rule
904(c)(1), as the case may be.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
[NAME OF TRANSFEROR]
By:
----------------------------
Name:
Title:
Address:
Date:
--------------------------
Upon transfer, the Units should be registered in the name of the new beneficial
owner as follows:
Name:
--------------------------------------------------
Address:
-----------------------------------------------
Taxpayer ID Number:
------------------------------------
2
