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Exhibit 10.68
SUBORDINATION AND INTERCREDITOR AGREEMENT
SUBORDINATION AND INTERCREDITOR AGREEMENT, dated as of January 28, 1999
(this "Intercreditor Agreement"), made and entered into by and among THE CHASE
MANHATTAN BANK, a New York bank, as administrative agent in such capacity,
together with its successors and assigns in such capacity (the "Senior Creditor
Representative"), for the benefit of each of the lenders (together with their
respective successors and assigns, the "Senior Creditors") a party to the Third
Amended and Restated Credit Agreement dated as of December 30, 1998 (as from
time to time amended, modified or supplemented in accordance with the terms
thereof, the "Senior Credit Agreement"), TELCOM VENTURES, L.L.C., a Delaware
limited liability company ("TV" and, together with its successors and assigns,
the "Subordinated Creditor"), and LCC INTERNATIONAL, INC., a Delaware
corporation (together with its successors and assigns, the "Company").
W I T N E S S E T H
WHEREAS, the Company has issued to TV its Convertible Subordinated
Promissory Note dated January 28, 1999 in the principal amount of $5,000,000
(the "Subordinated Note");
WHEREAS, on the date hereof, the Company, LCC Europe AS, LCC Design
Services, L.L.C., LCC Development Company, L.L.C., Xxxx Telecommunications,
L.L.C., Microcell Management, Inc., the Senior Creditor Representative and the
Senior Creditors are entering into the Senior Credit Agreement, pursuant to
which the Senior Creditors have agreed to extend credit to the Company upon the
terms and subject to the conditions set forth therein to be evidenced by the
Notes issued by the Company thereunder and the Letters of Credit issued
thereunder in the maximum aggregate principal amount of $22,500,000
(collectively, as from time to time amended, modified or supplemented in
accordance with the terms thereof, the "Senior Notes");
NOW, THEREFORE, in order to induce the Senior Creditors to enter into the
Senior Credit Documents (as hereinafter defined), and pursuant to Section
5.01(g) of the Senior Credit Agreement, the Company and the Subordinated
Creditor hereby agree with the Senior Creditor Representative that, until the
Senior Debt (as hereinafter defined) shall have been paid in full in cash, the
Company and the Subordinated Creditor Representative each will comply with such
of the following provisions as are applicable to it:
1. Definitions.
Capitalized terms used in this Intercreditor Agreement without definition
shall have the respective meanings ascribed to them in the Senior Credit
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Agreement, as in effect on the date hereof. As used in this Intercreditor
Agreement, the terms set forth below shall have the following meanings:
"Permitted Proceeds" means the proceeds of any equity financings, debt
financings or asset sales of the Company or any of its subsidiaries (it being
understood that (a) any debt incurrence by the Company or any its subsidiaries
shall remain subject to any required approvals under the Senior Credit Agreement
and (b) any asset sale by the Company or any of its Subsidiaries shall remain
subject to any required approvals under the Senior Credit Agreement and, where
such approval is required, the proceeds of such asset sale shall constitute
"Permitted Proceeds" only to the extent that the holders of the Senior Debt have
not elected to apply the same to the payment of Senior Debt).
"Reorganization Securities" means securities of the Company or any other
Person provided for by a plan of reorganization, composition, arrangement,
adjustment or readjustment of the Company or of its securities, and issued or
distributed in any bankruptcy or other proceeding referred to in Section 2.2.
hereof, to the extent consisting of (a) shares of common stock, or warrants or
rights to purchase shares of common stock, of the Company or such other Person,
or (b) debt securities of the Company or such other Person, provided that (i)
such debt securities shall mature no earlier than the later of (x) April 30,
2000 and (y) the first anniversary of the final stated maturity date of any debt
securities issued or distributed to the holders of Senior Debt pursuant to such
plan or reorganization, composition, arrangement, adjustment or readjustment,
(ii) the covenants, events of default, representations, warranties and other
provisions contained in such debt securities and in any agreements, instruments
and documents executed pursuant to or in connection therewith shall be
substantially similar to, and not more burdensome to the Company than, the
corresponding provisions with respect to the Subordinated Debt contained in the
Subordinated Note, and (iii) the payment of such debt securities shall be
subordinate and subject, at least to the extent provided in this Intercreditor
Agreement with respect to the Subordinated Debt, to the payment of all Senior
Debt of the Company at the time outstanding, and to the payment of all
securities issued in exchange therefor to the holders of such Senior Debt at the
time outstanding.
"Senior Credit Documents" means the Senior Credit Agreement, the Senior
Notes and all notes, security agreements, pledge agreements, mortgages,
indentures, deeds of trust, letters of credit, interest rate protection
agreements, currency protection agreements, financing statements, Guaranties and
other agreements, instruments and documents now or hereafter executed pursuant
thereto or in connection therewith, and all credit agreements, loan agreements,
notes, mortgages, indentures, deed of trusts, security agreements, pledge
agreements, letters of credit, interest rate protection agreements, currency
protection agreements, financing statements, Guaranties and other agreements,
instruments and documents hereafter executed in connection with any extension,
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renewal, refunding or refinancing thereof, as any of the same may hereafter from
time to time be amended, modified or supplemented in accordance with the terms
thereof.
"Senior Debt" means (a) the principal amount of Debt now or hereafter
incurred by the Company under the Senior Credit Documents, (b) prepayment
charges, if any, payable with respect thereto, (c) interest thereon (including,
without limitation, interest accruing subsequent to the commencement by or
against the Company of any proceeding under the Bankruptcy Code, whether or not
such interest is allowed on a claim in such proceeding), (d) all obligations of
any Person under any Guaranty of any of such Debt now or hereafter executed
pursuant to the Senior Credit Documents, and (e) all fees including, without
limitation, attorneys' fees), costs, expenses, indemnities and other amounts now
or hereafter payable pursuant to the terms or in connection with any of the
Senior Credit Documents.
"Senior Default" means any Default or Event of Default as defined in
Section 10.01 of the Senior Credit Agreement, or as defined in any comparable
provision of any subsequent or successor agreement hereafter executed in
connection with any extension, renewal, refunding or refinancing of Senior Debt.
"Senior Payment Default" means any Senior Default occurring by reason of
the failure of the Company to pay when due all or any part of the principal
amount of the Senior Debt, interest thereon, or any fees payable under the
Senior Credit Documents.
"Subordinated Debt" means the principal amount of all Debt of the Company
now or hereafter outstanding under the Subordinated Note Documents together with
interest thereon and prepayment charges (if any) payable with respect thereto,
all fees, costs, expenses, indemnities and other amounts now or hereafter
payable pursuant to the terms or in connection with any of the Subordinated Note
Documents, and all obligations of the Company or any other Person under any
Guaranty of any of such Debt now existing or hereafter executed pursuant to the
Subordinated Note or otherwise. "Subordinated Debt" shall also include, without
limitation, any obligation or claim with respect to an optional or mandatory
prepayment or redemption of the Subordinated Note and any obligation or claim
(whether for rescission or damages and whether based on contract, tort, duty
imposed by law, or any other theory of liability) relating to or arising out of
the offer, issuance or sale of the Subordinated Note or the execution or
delivery of any Guaranties or other instruments issued by the Company pursuant
to any of the Subordinated Note Documents. "Subordinated Debt" shall not include
the obligation of the Company to issue Capital Stock in the Company upon
conversion of the Subordinated Note; provided, however, that any payment
obligation of the Company that arises under the Subordinated Note Documents upon
such issuance shall be included as "Subordinated Debt."
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"Subordinated Default" means (i) any Event of Default as defined in the
Subordinated Note, and (ii) any other breach of, or default under, any provision
of any of the Subordinated Note Documents.
"Subordinated Note Documents" means the Subordinated Note and all other
agreements, instruments and documents now existing or hereafter executed
pursuant to or in connection with the Subordinated Note, as any of the same may
hereafter from time to time be amended, modified or supplemented in accordance
with the terms thereof.
2. Subordination.
2.1 Subordinated Debt Subordinated to Senior Debt. Each of the Company
and the Subordinated Creditor, for itself and its successors and assigns
(including without limitation all subsequent holders of Subordinated Debt),
covenants and agrees, that the payment of the Subordinated Debt shall be
subordinate and subject in right of payment, to the extent and in the manner
hereinafter set forth, to the prior payment in full in cash of all Senior Debt,
and that each holder of Senior Debt, whether now outstanding or hereafter
created, incurred, assumed or guaranteed, shall be deemed to have acquired
Senior Debt in reliance upon the provisions contained in this Intercreditor
Agreement.
2.2. Subordinated Debt Subordinated to Prior Payment of All Senior Debt
on Dissolution, Liquidation, Reorganization, Etc. Upon any payment or
distribution of the assets of the Company of any kind or character, whether in
cash, property or securities from any source whatsoever (including any
collateral, and proceeds thereof whether in cash or in kind, at any time
securing the Subordinated Debt, and including any payment or distribution that
is payable by reason of the payment of any other Debt of the Company being
subordinated to the payment of the Subordinated Debt), to creditors upon any
dissolution, winding-up, total or partial liquidation, reorganization,
composition, arrangement, adjustment or readjustment of the Company or its
securities (whether voluntary or involuntary, or in bankruptcy, insolvency,
reorganization, liquidation or receivership proceedings, or upon an assignment
for the benefit of creditors, or any other marshaling of the assets and
liabilities of the Company, or otherwise), then in such event:
(i) the holders of the Senior Debt shall be entitled to receive
payment in full in cash of all amounts due or to become due or in respect of all
Senior Debt, before any payment is made on account of or applied on the
Subordinated Debt;
(ii) any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities from any source
whatsoever (other than Reorganization Securities), to which the holders of the
Subordinated Debt would be entitled except for the provisions of this Xxxxxxx 0,
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xxxxx xx paid or delivered by any debtor, custodian, liquidating trustee, agent
or other Person making such payment or distribution, directly to the holders of
such Senior Debt, or their representative or representatives, ratably according
to the aggregate amounts remaining unpaid on account of the principal of and
interest on such Senior Debt held or represented by each, for application to the
payment of all such Senior Debt in full in cash after giving effect to any
concurrent payment or distribution to the holders of such Senior Debt; and
(iii) in the event that, notwithstanding the foregoing provisions
of this Section 2.2, any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities from any source
whatsoever (other than Reorganization Securities), shall be received by any
holder of Subordinated Debt before all such Senior Debt is paid in full in cash,
such payment or distribution shall be held in trust for the benefit of, and
shall immediately be paid or delivered by such holder to, as the case may be,
the holders of such Senior Debt remaining unpaid, or their representative or
representatives, for application to the payment of all such Senior Debt
remaining unpaid, ratably according to the aggregate amounts remaining unpaid on
account of such Senior Debt held or represented by each, to the extent necessary
to pay all such Senior Debt in full in cash after giving effect to any
concurrent payment or distribution to the holders of such Senior Debt.
Upon any distribution of assets of the Company referred to in this
Section 2.2, the holders of Subordinated Debt shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which such
bankruptcy, insolvency, reorganization, liquidation, receivership or other
proceeding is pending, or a certificate of the debtor, custodian, liquidating
trustee, agent or other Person making any distribution to such holders, for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Section 2.2.
2.3. Restrictions on Payments With Respect to Subordinated Debt;
Restrictions on Remedies.
(a) No payment on account of the Subordinated Debt or any satisfaction
of any judgment with respect thereto shall be made unless made from Permitted
Proceeds.
(b) No payment on account of the Subordinated Debt or any judgment
with respect thereto shall be made by or on behalf of the Company if, at the
time such payment is to be made, any Senior Payment Default shall have occurred,
and such Senior Payment Default shall not have been cured or waived in
accordance with the applicable provisions of the Senior Credit Documents.
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(c) In the event that at any time any holder of Senior Debt, or Person
duly acting as agent or representative of the holders of Senior Debt, shall give
written notice (each a "Payment Bar Notice") to the Company and TV of the
occurrence of any Senior Default other than a Senior Payment Default, no payment
on account of the Subordinated Debt or any judgment with respect thereto shall
be made by or on behalf of the Company during the period (each a "Payment Bar
Period") commencing on the date of receipt by the Company of such Payment Bar
Notice and ending on the earlier of (i) the date (if any) on which such Senior
Default shall be cured (if capable of being cured) or waived in accordance with
the applicable provisions of the Senior Credit Documents, and (ii) the 180th
consecutive day following the date of receipt by the Company of such Payment Bar
Notice: provided, however, that following receipt by the Company of any Payment
Bar Notice, no additional or further Payment Bar Notice may be given until the
90th consecutive day following the date of expiration or termination of the
Payment Bar Period that shall have commenced on the date of receipt of such
Payment Bar Notice.
(d) Following any acceleration of the maturity of any Senior Debt and as
long as such acceleration shall continue unrescinded and unannulled, such Senior
Debt shall first be paid in full in cash before any payment is made on account
of or applied to the Subordinated Debt.
(e) Following any acceleration of the maturity of any Subordinated Debt,
and as long as such acceleration shall continue unrescinded and unannulled, all
Senior Debt shall first be paid in full in cash before any payment is made on
account of or applied on the Subordinated Debt.
(f) In the event that, notwithstanding the foregoing provisions of this
Section 2.3, any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, from any source whatsoever,
shall be received by any holder of Subordinated Debt contrary to the foregoing
provisions of this Section 2.3, such payment or distribution shall be held in
trust for the benefit of, and shall be immediately paid or delivered by such
holder to, as the case may be, the holders of such Senior Debt remaining unpaid,
or their representative or representatives, for application to the payment or
prepayment of all such Senior Debt remaining unpaid, ratably according to the
aggregate amounts remaining unpaid on account of the Senior Debt held or
represented by each, to the extent necessary to pay all such Senior Debt in full
in cash after giving effect to any concurrent payment or distribution to the
holders of such Senior Debt.
(g) If (i) no Senior Payment Default has occurred which has not been
cured or waived (including any Senior Payment Default as may occur upon an
acceleration of the maturity of any Senior Debt), (ii) no Payment Bar Period has
commenced and is continuing and (iii) the maturity of any Subordinated Debt has
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not been accelerated (or any such acceleration has been rescinded), the Company
may pay, and the Subordinated Creditor may receive and retain any required
payment (including any required prepayment) or permitted prepayment of principal
or interest under the Subordinated Note.
(h) Notwithstanding the occurrence and continuance of any Subordinated
Default, no holder of Subordinated Debt shall take any action to (i) accelerate
the maturity of all or any of the Subordinated Debt, (ii) commence or join in
the commencement of any involuntary proceeding under the Bankruptcy Code against
the Company, (iii) commence, prosecute or participate in any other legal or
equitable judicial, administrative, arbitration or other proceeding against the
Company or any of its Property seeking to collect any of the Subordinated Debt
or to enforce any of their other rights as holders of the Subordinated Debt,
(iv) take any action to create or perfect any Lien on any of the Company's real
or personal Property to secure any of the Subordinated Debt or any judgment in
respect thereto, (v) enforce or apply any Lien now or hereafter existing
securing any of the Subordinated Debt, or (vi) exercise any other rights or
remedies under the provisions of the Subordinated Note Documents, or at law or
in equity or otherwise, which it may have by reason of the occurrence and
continuance of any Subordinated Default, until (x) the Company and the holders
of the Senior Debt shall have received written notice from the holders of a
majority of the outstanding principal amount of the Subordinated Debt, or any
agent or representative acting on behalf of such holders, of the occurrence of
such Subordinated Default specifying what action such holders intend to take in
respect thereto, and 180 days shall have elapsed after the date of receipt of
such notice and such Subordinated Default shall then be continuing, or (y) if
earlier, the date on which the maturity of the Senior Debt shall have been
accelerated in accordance with the terms of the Senior Credit Documents.
Notwithstanding anything to the contrary herein, there shall be no restriction
on the ability of the Subordinated Creditor to convert the Subordinated Note as
provided therein.
(i) The Company shall give prompt written notice to each holder of
outstanding Subordinated Debt of the occurrence of any Senior Default and of any
acceleration of the maturity of any Senior Debt, but no failure or delay by the
Company in giving any such notice shall affect the rights hereunder of the
holders of Senior Debt. The Senior Creditor Representative shall also endeavor
to give written notice of any acceleration of the maturity of any Senior Debt to
TV, but no failure or delay by the Senior Creditor Representative in giving any
such notice shall affect the rights hereunder of the holders of the Senior Debt.
(j) In the event of the occurrence or continuance of any default under
the Subordinated Debt, the holder of Subordinated Debt shall not exercise any
rights of set-off, whether contractual, legal or equitable, which it may have
with respect to any obligations of the holder of Subordinated Debt to the
Company under that certain Promissory Note, dated September 30, 1996, of Telcom
Ventures,
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L.L.C. in the principal amount of $3.5 million, it being understood as
between the Company and the holder of Subordinated Debt that the foregoing
provision shall not constitute a waiver of the exercise of such rights of
set-off at such time as such provision is no longer in effect.
2.4 Holders of Subordinated Debt to be Subrogated to Rights of Holders
of Senior Debt. Subject to the prior payment in full in cash of all Senior Debt,
the holders of the Subordinated Debt shall be subrogated to the rights of the
holders of Senior Debt to receive payments or distributions of assets of the
Company applicable to the Senior Debt and the security interest of the holders
of Senior Debt until the Subordinated Debt shall be paid in full, and for
purposes of such subrogation, no payment or distribution to the holders of the
Senior Debt of assets, whether in cash, property or securities, distributable to
the holders of Senior Debt under the provisions hereof to which the holders of
the Subordinated Debt would be entitled except for the provisions of this
Section 2, and no payment pursuant to the provisions of this Section 2 to the
holders of Senior Debt by the holders of the Subordinated Debt shall, as between
the Company, their creditors other than the holders of the Senior Debt and
holders of the Subordinated Debt, be deemed to be a payment by the Company to or
on account of such Senior Debt, it being understood that the provisions of this
Section 2 are, and are intended, solely for the purpose of defining the relative
rights of the holders of the Subordinated Debt, on the one hand, and the holders
of Senior Debt, on the other hand.
2.5 Obligations of the Company Unconditional. Nothing contained in
this Section 2 or elsewhere in this Intercreditor Agreement or in the
Subordinated Note Documents is intended to or shall impair, as between the
Company and its creditors other than the holders of Senior Debt, the obligations
of the Company to the holders of the Subordinated Debt to pay the Subordinated
Debt as and when it shall become due and payable in accordance with its terms,
or is intended to or shall affect the relative rights of the holders of the
Subordinated Debt and creditors of the Company other than the holders of the
Senior Debt, nor shall anything herein or therein (except as otherwise expressly
provided in this Intercreditor Agreement) prevent any holder of Subordinated
Debt from exercising all remedies otherwise permitted by applicable law upon the
happening of a Subordinated Default, subject to the rights, if any, under this
Section 2 of the holders of Senior Debt in respect to assets, whether in cash,
property or securities, of the Company received upon the exercise of any such
remedy. The failure of the Company to make payment on account of the
Subordinated Debt by reason of any provision of this Section 2 shall not be
construed as preventing the occurrence or continuance of a Subordinated Default
under the Subordinated Note Documents.
3. Reinstatement. To the extent any payment of Senior Debt (whether
by or on behalf of the Company, as proceeds of security or enforcement of any
right of setoff or otherwise) is declared to be fraudulent or preferential, set
aside, rescinded or required to be paid to a trustee, receiver, debtor in
possession or
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other similar party under any bankruptcy, insolvency, receivership or similar
law, then to the extent such payment is recovered by, or paid over to, such
trustee, receiver, debtor in possession or other similar party, the Senior Debt
or part thereof originally intended to be satisfied shall be deemed to be
reinstated and outstanding as if such payment had not occurred. All Senior Debt
shall be and remain Senior Debt for all purposes of this Intercreditor
Agreement, whether or not subordinated, in any bankruptcy, insolvency,
reorganization, liquidation, receivership, assignment for the benefit of
creditors or similar proceeding.
4. No Waiver of Subordination Provisions. Except with the prior
written consent of the Subordinated Creditor, the Company will not incur Senior
Debt in an aggregate principal amount in excess of $25,000,000. Except in the
case of a breach of the agreement with the Subordinated Creditor set forth in
the immediately preceding sentence of this Section 4, no right of any holder of
Senior Debt to enforce subordination as herein provided shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Company, or by any act or failure to act on the part of any such holder or
holders, or by any noncompliance by the Company with the terms, provisions and
conditions of the Senior Credit Documents regardless of any knowledge thereof
which the holders of Senior Debt, or any of them, may have or be otherwise
charged with. Without in any way limiting the generality of the foregoing, the
holders of Senior Debt, or any of them, may, at any time and from time to time,
without the consent of or notice to the holders of the Subordinated Debt,
without incurring any liabilities to any such holders and without impairing or
releasing the subordination and other benefits provided in this Intercreditor
Agreement or the obligations hereunder of the holders, of Subordinated Debt to
the holders of Senior Debt, even if any right of reimbursement or subrogation or
other right or remedy of any holder of the Subordinated Debt is affected,
impaired or extinguished thereby, do any one or more of the following:
(i) change the manner, place or terms of payment or change or
extend the time of payment of, or renew, exchange, amend, increase or
alter, the terms of any Senior Debt, any security therefor or Guarantee
thereof or any liability of the Company to such holder, or any liability
incurred directly or indirectly in respect thereof, or otherwise amend,
renew, exchange, extend, modify, increase or supplement in any manner
Senior Debt or any instrument evidencing or guaranteeing or securing the
same or any agreement under which Senior Debt is outstanding; provided,
however, that, except with the prior written consent of the Subordinated
Creditor, no increase in the principal amount of the Senior Debt which
would result in the aggregate outstanding principal amount of Senior Debt
to exceed $25,000,000, and no extension of the maturity date of the
Senior Debt beyond December 31, 2010 may be effected without the prior
written consent of the Subordinated Creditor;
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(ii) settle or compromise any Senior Debt or any security therefor
or any liability incurred directly or indirectly in respect thereof and
apply any sums by whomsoever paid and however realized to any of the
Senior Debt in any manner or order; and
(iii) fail to take or to record or otherwise perfect, for any
reason or for no reason, any Lien securing Senior Debt by whomsoever
granted, exercise or delay in or refrain from exercising any right or
remedy against the Company or any other Person or any security, elect any
remedy and otherwise deal freely with any security and with the Company
or any liability of the Company to such holder or any liability incurred
directly or indirectly in respect thereof.
All rights and interests under this Intercreditor Agreement of the
holders of Senior Debt, and all agreements and obligations of the holders of
Subordinated Debt and the Company hereunder, shall remain in full force and
effect irrespective of (i) any lack of validity or enforceability of the Senior
Credit Documents, or of any provision of any thereof, or (ii) any other
circumstance that might otherwise constitute a defense available to, or be
discharge of, the Company in respect of the Senior Debt.
5. Authorization to Take Action to Effect Subordination. If any
holder of Subordinated Debt shall fail to file a proper claim or proof of debt
or other document or amendment thereof in form required in any proceeding under
the Bankruptcy Code prior to 30 days before the expiration of time to file such
claim or other document or amendment thereof, then the Senior Creditor
Representative shall have the right (but not the obligation) in such proceeding,
and the Senior Credit Representative is hereby irrevocably appointed lawful
attorney for such holder of Subordinated Debt for the purposes of enabling the
Senior Creditor Representative to demand, xxx for, collect, receive and give
receipt for payments and distributions in respect of the Subordinated Debt that
are made in such proceedings and that are required to be paid or delivered to
the holders of Senior Debt as provided in Section 2.2 hereof, and to file and
prove all claims therefor and to execute and deliver all documents in such
proceedings in the name of such holder of Subordinated Debt or otherwise in
respect of such claims, as the Senior Creditor Representative may determine to
be necessary or appropriate; provided that if a proper proof of claim with
respect to the Subordinated Debt held by such holder shall be filed, such holder
shall have the right upon written notice to the Senior Creditor Representative
to terminate the right of the Senior Creditor Representative to take any further
actions with respect to such claim of such holder and such holder shall
thereafter be entitled to pursue such claim and to pursue the rights and
remedies respecting such claim (including the right to vote in connection with
one or more proposed plans of reorganization) in such proceedings, so long as
such holder shall do so diligently and in good faith.
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6. Legend. The Company and each holder of any Subordinated Note or
other note evidencing Subordinated Debt now or hereafter outstanding covenant to
cause such note to have affixed upon it at all times a conspicuous legend which
reads substantially as follows:
"This instrument is subject to the Subordination and Intercreditor
Agreement dated as of January 28, 1999, among The Chase Manhattan
Bank, as Administrative Agent, Telcom Ventures, L.L.C., and LCC
International, Inc., which, among other things, contains
provisions subordinating the obligations of the maker of this
instrument to the payee hereof to such maker's obligations to the
holders of the Senior Debt (as defined in said Subordination and
Intercreditor Agreement), to which provisions the holder of this
instrument, by its acceptance hereof, agrees."
7. Amendments and Waivers to Subordinated Note Documents. No
provision of the Subordinated Note Documents shall be further amended,
supplemented, modified or waived without the prior written consent of the Senior
Creditor Representative.
8. Notices. All notices hereunder shall be in writing and shall be
conclusively deemed to have been received and shall be effective (a) on the day
on which delivered if delivered personally or transmitted by telecopier, or (b)
one Business Day after the date on which the same is delivered to a nationally
recognized overnight courier service, and shall be addressed:
(i) if to the Company, to it at the following address (or, in
the case of a telecopy, to the following telecopy number):
LCC International, Inc.
0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attention: President and Chief Executive Officer
Telecopy No.: (000) 000-0000;
with copies to:
LCC International, Inc.
0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000; and
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Xxxxx & Xxxxxxx, X.X.X.
Xxxxxxxx Xxxxxx
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxxx Xxxxxxxxx, Esq.
Telecopy No.: (000) 000-0000;
(ii) if to the Subordinated Creditor, to it at the following
address:
Telcom Ventures, L.L.C.
000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: President
Telecopy No.: (000) 000-0000
with a copy to:
Telcom Ventures, L.L.C.
000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000; and
(iii) If to the Senior Creditor Representative, to it at its
address for notice (or, in the case of a telecopy, to the telecopy
number) provided for in the Senior Creditor Agreement;
or at such other address and/or telecopy number and/or to the attention of such
other Persons as any of such Persons shall have advised the others by notice in
the manner herein specified.
9. Successors; Continuing Effect; Etc. This Agreement is being
entered into for the benefit of, and shall be binding upon, the Senior Creditor
Representative and the Subordinated Creditor and their respective successors and
assigns, including, without limitation, all subsequent holders of Senior Debt
and Subordinated Debt whether now outstanding or hereafter incurred. This
Agreement shall be binding upon the Company and its successors and assigns. This
Agreement shall be a continuing agreement and shall be irrevocable and shall
remain in full force and effect as long as there is both Senior Debt and
Subordinated Debt outstanding, but shall terminate upon the payment in full in
cash of all outstanding Senior Debt.
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10. Specific Performance. The holders of Senior Debt are hereby
authorized to demand specific performance of this Intercreditor Agreement,
whether or not the Company or any holder of Subordinated Debt shall have
complied with any of the provisions hereof applicable to it, at any time when
the Company or such holder of Subordinated Debt shall have failed to comply with
any of the provisions of this Intercreditor Agreement applicable to it. The
Company and each holder of Subordinated Debt irrevocably waives any defense
based on the adequacy of a remedy at law, which might be asserted as a bar to
such remedy of specific performance.
11. No Disposition of Subordinated Debt. No Holder of Subordinated
Debt will sell, assign, pledge, encumber or otherwise dispose of any of the
Subordinated Debt unless such sale, assignment, pledge, encumbrance or
disposition is made expressly subject to this Intercreditor Agreement.
12. Amendments, etc. This Agreement may be amended, and the terms
hereof may be waived, only with the written consent of the Company, the holders
of a majority in outstanding principal amount of the Senior Debt and the holders
of a majority in outstanding principal amount of the Subordinated Debt.
13. Conflicting Provisions. In the event of any conflict or
inconsistency between the provisions of this Intercreditor Agreement, on the one
hand, and any term or provision of the Senior Creditor Documents or the
Subordinated Note Documents, on the other hand, the provisions of this
Intercreditor Agreement govern and prevail.
14. Miscellaneous. This Agreement, which may be executed in any number
of counterparts, shall be governed by and construed and interpreted in
accordance with the laws of the State of New York. The headings in this
Intercreditor Agreement are for convenience of reference only and shall not
alter or otherwise affect the meaning hereof.
15. Submission to Jurisdiction, Waiver of Venue.
(a) EACH OF THE COMPANY, THE SUBORDINATED CREDITOR AND THE SENIOR
CREDITOR REPRESENTATIVE CONSENTS AND AGREES TO THE JURISDICTION OF ANY STATE OR
FEDERAL COURT SITTING IN THE COUNTY OF NEW YORK, STATE OF NEW YORK, AND WAIVES
ANY OBJECTION BASED ON VENUE OR FORUM NON CONVENIENS WITH RESPECT TO ANY ACTION
INSTITUTED THEREIN.
(b) NOTHING IN THIS SECTION 15 SHALL AFFECT THE RIGHT OF THE SENIOR
CREDITOR REPRESENTATIVE OR ANY HOLDER OF SENIOR DEBT TO BRING ANY ACTION OR
PROCEEDING AGAINST THE
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COMPANY OR THE SUBORDINATED CREDITOR OR THEIR RESPECTIVE PROPERTY IN THE COURTS
OF ANY OTHER JURISDICTION.
16. Waiver of Right to Trial by Jury. EACH OF THE COMPANY, THE SENIOR
CREDITOR REPRESENTATIVE AND THE SUBORDINATED CREDITOR HEREBY WAIVES ANY RIGHT TO
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER
THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM IN RESPECT TO
THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER SOUNDING IN CONTRACT
OR TORT OR OTHERWISE. EACH OF THE COMPANY, THE SENIOR CREDITOR REPRESENTATIVE
AND THE SUBORDINATED CREDITOR HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY
AND THAT ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT
WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
17. Consents. The Subordinated Creditor hereby consents to the
execution, delivery and performance by the Company of the Senior Credit
Documents and to the incurring of the Debt and granting of Liens in accordance
with the terms thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Intercreditor
Agreement as of the date first written above.
SENIOR CREDITOR REPRESENTATIVE:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By: /S/ XXXX X. ARIA
-------------------
Its: Vice President
SUBORDINATED CREDITOR:
TELCOM VENTURES, L.L.C.
By: /S/ XXXXXXXX XXXXX
--------------------
Its:
COMPANY:
LCC INTERNATIONAL, INC.
By: /S/ XXXXX X. XXXXXX
--------------------
Its: Vice President, General Counsel
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