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Exhibit 10.63
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of December 30, 1998
among
LCC INTERNATIONAL, INC.
LCC EUROPE AS
LCC DESIGN SERVICES, L.L.C.
LCC DEVELOPMENT COMPANY, L.L.C.
MICROCELL MANAGEMENT, INC.
XXXX TELECOMMUNICATIONS SERVICES, L.L.C.
THE LENDERS SIGNATORY HERETO
and
THE CHASE MANHATTAN BANK
as Administrative Agent
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TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS; ACCOUNTING TERMS .................................1
Section 1.01. Definitions. ............................................1
Section 1.02. Accounting Terms. ........................................24
ARTICLE 2. THE CREDIT .....................................................24
Section 2.01. Loans. ...................................................24
Section 2.02. The Notes. ...............................................24
Section 2.03. Purpose. .................................................25
Section 2.04. Borrowing Procedures. ....................................25
Section 2.05. Optional Prepayments and Conversions. ....................25
Section 2.06. Mandatory Prepayments. ...................................25
Section 2.07. Interest Periods: Renewals. ..............................26
Section 2.08. Changes of Commitments. ..................................27
Section 2.09. Certain Notices. .........................................27
Section 2.10. Minimum Amounts. .........................................28
Section 2.11. Interest. ................................................28
Section 2.12. Fees. ....................................................29
Section 2.13. Payments Generally. ......................................29
ARTICLE 3. THE LETTERS OF CREDIT ........................................30
Section 3.01. Letters of Credit. .......................................30
Section 3.02. Purposes. ................................................30
Section 3.03. Procedures for issuance of Letters of Credit .............30
Section 3.04. Participating Interests . ................................31
Section 3.05. Payments . ...............................................31
Section 3.06. Further Assurances. ......................................32
Section 3.07. Obligations Absolute. ....................................32
Section 3.08. Cash Collateral Account. .................................34
Section 3.09. Letter of Credit Fees. ...................................34
ARTICLE 4. YIELD PROTECTION; ILLEGALITY; ETC ..............................34
Section 4.01. Additional Costs. ........................................34
Section 4.02. Limitation on Fixed Rate Loans. ..........................36
Section 4.03. Illegality. ..............................................37
Section 4.04. Certain Conversions Pursuant to Sections 4.01
and 4.03. .......................................................37
Section 4.05. Certain Compensation. ....................................38
Section 4.06. Taxes. ...................................................39
ARTICLE 5. CONDITIONS PRECEDENT ...........................................40
Section 5.01. Documentary Conditions Precedent. ........................40
Section 5.02. Additional Conditions Precedent. .........................42
Section 5.03. Deemed Representations. ..................................42
ARTICLE 6. REPRESENTATIONS AND WARRANTIES .................................42
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Section 6.01. Organization. Good Standing_and Due Qualification ........42
Section 6.02. Power and Authority: No Conflicts ........................42
Section 6.03. Legally Enforceable Agreements. ..........................43
Section 6.04. Litigation. ..............................................43
Section 6.05. Financial Statements. ....................................43
Section 6.06. Ownership and Liens ......................................45
Section 6.07. Taxes ....................................................45
Section 6.08. ERISA ....................................................45
Section 6.09. Subsidiaries and Affiliates ..............................45
Section 6.10. Credit Arrangements ......................................46
Section 6.11. Material Contracts .......................................46
Section 6.12. Proprietary Rights. ......................................46
Section 6.13. Hazardous Materials ......................................47
Section 6.14. No Default on Outstanding Judgments or Orders ............47
Section 6.15. No Defaults on Other Agreements ..........................48
Section 6.16. Labor Disputes and Acts of God ...........................48
Section 6.17. Governmental Regulation ..................................48
Section 6.18. No Forfeiture ............................................48
Section 6.19. Solvency .................................................48
Section 6.20. Subordinated Note Documents ..............................49
Section 6.21. Security Documents .......................................50
Section 6.22. Senior Debt ..............................................50
ARTICLE 7. AFFIRMATIVE COVENANTS ..........................................50
Section 7.01. Maintenance of Existence .................................50
Section 7.02. Conduct of Business ......................................50
Section 7.03. Maintenance of Properties ................................50
Section 7.04. Maintenance of Records ...................................50
Section 7.05. Maintenance of Insurance .................................51
Section 7.06. Compliance with Laws .....................................51
Section 7.07. Right of Inspection ......................................51
Section 7.08. Reporting Requirements ...................................51
Section 7.09. Additional Guarantors. ...................................56
Section 7.10. After Acquired Real Property. ............................56
ARTICLE 8. NEGATIVE COVENANTS .............................................56
Section 8.01. Debt .....................................................56
Section 8.02. Guaranties ...............................................57
Section 8.03. Liens ....................................................58
Section 8.04. Leases ...................................................59
Section 8.05. Sale and Leaseback .......................................59
Section 8.06. Investment ...............................................59
Section 8.07. Restricted Payments ......................................60
Section 8.08. Sale of Assets ...........................................60
Section 8.09. Transactions with Affiliates .............................61
Section 8.10. Mergers ..................................................61
Section 8.11. Acquisitions .............................................62
Section 8.12. No Activities Leading to Forfeiture ......................62
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Section 8.13. Capital Expenditures. ....................................62
Section 8.14. Amendments or Waivers of Certain Documents ...............62
Section 8.15. Restrictions. ............................................62
ARTICLE 9. FINANCIAL COVENANTS ............................................62
Section 9.01. Interest Coverage Ratio ..................................63
Section 9.02. Minimum Net Worth ........................................63
Section 9.03. Current Ratio ............................................63
Section 9.04. Balance Sheet Leverage Ratio .............................63
Section 9.05. Consolidated EBIT ........................................63
ARTICLE 10. EVENTS OF DEFAULT. ............................................63
Section 10.01. Events of Default .......................................63
Section 10.02. Remedies. ...............................................66
ARTICLE 11. UNCONDITIONAL GUARANTY ........................................66
Section 11.01. Guarantied Obligations. .................................66
Section 11.02. Performance Under This Agreement ........................67
Section 11.03. Waivers. ................................................67
Section 11.04. Releases ................................................69
Section 11.05. Marshaling ..............................................69
Section 11.06. Liability. ..............................................70
Section 11.07. Unconditional Obligation ................................70
Section 11.08. Election to Perform Obligations .........................70
Section 11.09. No Election. ............................................70
Section 11.10. Severability. ...........................................71
Section 11.11. Other Enforcement Rights. ...............................71
Section 11.12. Delay or Omission: No Waiver ............................71
Section 11.13. Restoration of Rights and Remedies. .....................71
Section 11.14. Cumulative Remedies .....................................72
Section 11.15. Survival. ...............................................72
Section 11.16. No Setoff. Counterclaim or Withholding: Gross-Up ........72
Section 11.17. Payment in Applicable Currency. .........................72
ARTICLE 12. THE ADMINISTRATIVE AGENT ......................................72
Section 12.01. Appointment. Powers and Immunities of
Administrative Agent ............................................72
Section 12.02. Reliance by Administrative Agent. .......................73
Section 12.03. Defaults. ...............................................73
Section 12.04. Rights of Administrative Agent as a
Lender. .........................................................74
Section 12.05. Indemnification of Administrative Agent. ................74
Section 12.06. Documents. ..............................................75
Section 12.07. Non-Reliance on Administrative Agent and Other
Lenders .........................................................75
Section 12.08. Failure of Administrative Agent to Act. .................75
Section 12.09. Resignation or Removal of Administrative Agent. .........75
Section 12.10. Amendments Concerning Agency Function ...................76
Section 12.11. Liability of Administrative Agent .......................76
Section 12.12. Transfer of Agency Function .............................76
Section 12.13. Non-Receipt of Funds by the Administrative Agent. .......76
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Section 12.14. Withholding Taxes. ......................................77
Section 12.15. Several Obligations and Rights of Lenders. ..............77
Section 12.16. Pro Rata Treatment of Loans Etc. ........................77
Section 12.17. Sharing of Payments Among Lenders. ......................78
Section 12.18. Security Documents. .....................................78
Section 12.19. Collateral. .............................................79
Section 12.20. Amendment of Article 12. ................................79
ARTICLE 13. MISCELLANEOUS .................................................79
Section 13.01. Amendments and Waivers ..................................79
Section 13.02. Usury ...................................................80
Section 13.03. Expenses ................................................80
Section 13.04. Survival. ...............................................81
Section 13.05. Assignment: Participations. .............................81
Section 13.06. Notices. ................................................82
Section 13.07. Setoff ..................................................82
Section 13.08. JURISDICTION; IMMUNITIES ................................82
Section 13.09. Table of Contents: Headings .............................84
Section 13.10. Severability ............................................84
Section 13.11. Counterparts. ...........................................84
Section 13.12. Integration. ............................................84
Section 13.13. GOVERNING LAW ...........................................84
Section 13.14. Confidentiality .........................................84
Section 13.15. Treatment of Certain Information. .......................85
Section 13.16. Assumption: Reaffirmation. ..............................85
Section 13.17. Revised Schedules. ......................................86
Section 13.18. Refund of Taxes .........................................86
Section 13.19. Judgment Currency .......................................87
Section 13.20. Limited Waive ...........................................87
Section 13.21. Subordination Agreements. ...............................87
EXHIBITS
Exhibit A1 Revolving Credit Note
Exhibit A2 Swingline Note
Exhibit B1 Form of Compliance Certificate
Exhibit B2 Form of Borrowing Base Certificate
Exhibit C1 Opinion of Counsel to the LCC Consolidated Entities and the
Individual Guarantor
Exhibit C2 Opinion of Norwegian Counsel to the Subsidiary Borrower
Exhibit D Singh Guaranty
Exhibit E Cash Collateral Account Agreement
SCHEDULES
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Schedule 6.04 Litigation
Schedule 6.07 Taxes
Schedule 6.09 Subsidiaries and Affiliates
Schedule 6.10 Credit Arrangements
Schedule 6.11 Material Contracts
Schedule 6.12 Proprietary Rights
Schedule A Schedule A to the Security Agreement
Schedule B Schedule A to the Intellectual Property Security Agreement
Schedule C Schedule A to the Pledge Agreement
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THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIRD AMENDED AND RESTATED CREDIT AGREEMENT dated as of December 30,
1998 among LCC INTERNATIONAL, INC., a corporation organized under the laws of
Delaware and successor by merger to Old LCC (including its successors and
assigns, the "Borrower"); LCC EUROPE AS, a limited liability company organized
under the laws of Norway (including its successors and assigns, the "Subsidiary
Borrower"); LCC DESIGN SERVICES, L.L.C., a limited liability company organized
under the laws of Delaware, LCC DEVELOPMENT COMPANY, L.L.C., a limited liability
company organized under the laws of Delaware, MICROCELL MANAGEMENT, INC., a
corporation organized under the laws of Delaware ("Microcell"), and XXXX
TELECOMMUNICATIONS SERVICES, L.L.C., a limited liability company organized under
the laws of Delaware (the "New Subsidiary Guarantor") (each of the foregoing
entities other than the Subsidiary Borrower, together with each of the
Subsidiaries of the Borrower which shall become a party hereto as a "Subsidiary
Guarantor" from time to time in accordance with Section 7.09 hereof, are
referred to herein collectively as the "Subsidiary Guarantors" and, together
with the Borrower and the Subsidiary Borrower, the "Obligors"); each of the
financial institutions which is a signatory hereto as a "Lender" or which shall
become a party hereto as a "Lender" from time to time (individually a "Lender"
and collectively the "Lenders"); and THE CHASE MANHATTAN BANK, a bank organized
under the laws of New York and successor by merger to The Chase Manhattan Bank
(National Association), as administrative agent for the Lenders (in such
capacity, together with its successors in such capacity, the "Administrative
Agent").
WHEREAS, the Borrower, the Subsidiary Borrower, the Subsidiary
Guarantors (other than the New Subsidiary Guarantor), the Lenders and the
Administrative Agent have entered into that certain Second Amended and Restated
Credit Agreement dated as of December 15, 1997 (the "Existing Credit
Agreement"), pursuant to which the Lenders have (a) extended credit to the
Borrower in the aggregate amount of $20,000,000 evidenced by the Revolving
Credit Notes issued by the Borrower and the Letters of Credit issued thereunder
and guarantied by each of the Subsidiary Guarantors (other than the New
Subsidiary Guarantor) and (b) extended credit to the Subsidiary Borrower in
Norwegian Krone in an aggregate amount of $2,500,000 evidenced by the Swingline
Notes issued by the Subsidiary Borrower and guarantied by the Borrower and the
Subsidiary Guarantors (other than the New Subsidiary Guarantor);
WHEREAS, the Borrower, the Subsidiary Borrower, the Subsidiary
Guarantors, the Lenders and the Administrative Agent have entered into this
Agreement to amend and restate the Existing Credit Agreement to provide for,
among other things, the extension of the Termination Date to March 31, 2000, the
entering of the Singh Guaranty by the Individual Guarantor, the addition of the
New Subsidiary Guarantor as a "Subsidiary Guarantor" and modifications of
certain covenants and definitions contained therein; and
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WHEREAS, the Obligors have requested that the Lenders make loans to the
Borrower and the Subsidiary Borrower, the repayment of which will be guarantied
by the Subsidiary Guarantors; each Obligor will receive direct economic and
financial benefits from the Debt incurred under this Agreement and the other
Facility Documents and the incurrence of such Debt is in the best interest of
such Obligor; and each Obligor acknowledges that the Lenders would not provide
the financing hereunder but for the joint and several obligations of such
Obligor.
ARTICLE 1. DEFINITIONS; ACCOUNTING TERMS
SECTION 1.01. DEFINITIONS As used in this Agreement the following terms
have the following meanings (terms defined in the singular to have a correlative
meaning when used in the plural and vice versa):
"Acquisition" means any transaction pursuant to which any LCC
Consolidated Entity (a) acquires a majority of the voting Capital Stock (or
warrants, options or other rights to acquire such Capital Stock) of any Person,
(b) causes or permits any Person to be merged into such LCC Consolidated Entity,
in any case pursuant to a merger, purchase of assets or any reorganization
providing for the delivery or issuance to the holders of such Person's then
outstanding Capital Stock, in exchange for such Capital Stock, of cash or
Capital Stock of any LCC Consolidated Entity, or a combination thereof, or (c)
purchases all or substantially all of the business or assets of any Person.
"Additional Costs" shall have the meaning assigned to such term in
Section 4.01.
"Administrative Agent" shall have the meaning assigned to such term in
the introductory paragraph hereof.
"Affiliate" means any Person: (a) which directly or indirectly
controls, or is controlled by, or is under common control with, any LCC
Consolidated Entity; (b) which directly or indirectly beneficially owns or holds
20% or more of any class of voting Capital Stock of any LCC Consolidated Entity;
(c) 20% or more of the voting Capital Stock of which is directly or indirectly
beneficially owned or held by any LCC Consolidated Entity; or (d) which is a
partnership in which any LCC Consolidated Entity is a general partner. The term
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a Person, whether
through the ownership of voting Capital Stock, by contract, or otherwise.
"Agreement" means this Third Amended and Restated Credit Agreement, as
amended or supplemented from time to time. References to Articles, Sections,
Exhibits, Schedules and the like refer to the Articles, Sections, Exhibits,
Schedules and the like of this Agreement unless otherwise indicated.
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"Applicable Rate" means, for any day, with respect to any Loan, or with
respect to the facility fees payable hereunder, as the case may be, the
applicable rate per annum set forth below under the caption "Fixed Rate Margin",
"Facility Fee Rate" or "Variable Rate Margin", as the case may be, based upon
the Cash Flow Leverage Ratio applicable on such date:
VARIABLE
CASH FLOW LEVERAGE FIXED RATE FACILITY FEE RATE
RATIO RATE
MARGIN MARGIN
CATEGORY 1 Less than 1.50 to 1 1.000% .250% .000%
CATEGORY 2 Greater than or equal 1.500% .375% .250%
to 1.50 to 1 but less
than 3.00 to 1
CATEGORY 3 Greater than or equal 2.000% .500% .500%
to 3.00 to 1
For purposes of the foregoing, (a) the Cash Flow Leverage Ratio shall
be determined as of the end of each fiscal quarter of the Borrower based upon
the Borrower's consolidated financial statements delivered pursuant to Section
7.08(a) or (b); and (b) each change in the Applicable Rate resulting from a
change in the Cash Flow Leverage Ratio shall be effective during the period
commencing on and including the date of delivery to the Administrative Agent of
such consolidated financial statements indicating such change and ending on the
date immediately preceding the effective date of the next change in the
Applicable Rate; provided that the Cash Flow Leverage Ratio shall be deemed to
be in Category 3 (i) at any time an Event of Default has occurred and is
continuing and has not been waived or (ii) if the Borrower fails to deliver the
consolidated financial statements required to be delivered by it pursuant to
Section 7.08(a) or (b), during the period from the expiration of the time for
delivery thereof until such consolidated financial statements are delivered. The
initial Applicable Rate shall be determined by reference to Category 3.
"Assigned Agreements" shall have the meaning assigned to such term in
the Security Agreement.
"Assumption Agreements" means the Assumption Agreements in the form of
Exhibit J to the Credit Agreement, dated as of June 14, 1996, among the
Borrower,
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LCC Design Services, L.L.C., LCC Development Company, L.L.C., the Lenders and
the Administrative Agent delivered under Section 7.09.
"Available Liquidity" means, at any time, the result of (a) the sum of
(i) the Cap plus (ii) Domestic Cash Equivalents and 50% of the Foreign Cash
Equivalents held by the Borrower at such time minus (b) the Loans and the Letter
of Credit Obligations outstanding at such time.
"Balance Sheet Leverage Ratio" means, at any date of determination
thereof, the ratio of (a) Consolidated Total Liabilities to (b) Consolidated Net
Worth.
"Banking Day" means any day on which commercial banks are not
authorized or required to close in New York, New York and, whenever such day
relates to a Fixed Rate Loan or notice with respect to any Fixed Rate Loan, a
day on which dealings in Dollar or Norwegian Krone deposits are also carried out
in the London or Norwegian interbank market.
"Borrowing Base" means, at any date of determination thereof, an amount
determined by the Administrative Agent with reference to the most recent
Borrowing Base Certificate to be equal to 85% of the aggregate book value (net
of credit balances) of Eligible Receivables.
"Borrowing Base Certificate" means the borrowing base certificate
substantially in the form of EXHIBIT B2 to be delivered by the Borrower under
the terms of this Agreement.
"Borrower" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"Business" means the business, anywhere in the world, of (i) wireless
telecommunications network planning, design, engineering and consulting
(including, without limitation, construction management services, site
acquisition services and system deployment services), (ii) engineering advice
and management services relating to the acquisition of wireless
telecommunications systems, (iii) developing, providing, distributing and
marketing of specialized cellular and other wireless telecommunications software
for photogrammetry, planning, system management, optimization, fraud control,
billing, customer information and other functions, (iv) developing, producing,
distributing and marketing of wireless telecommunications measurement and
evaluation hardware, (v) acquiring (whether by sale/leaseback or on a
build-to-suit basis), constructing and operating telecommunications towers and
related site components for supporting antennae and housing and base stations in
a wireless network, (vi) leasing space on such towers and at such sites and
(vii) any other business functionally interrelated with or incidental to any of
the foregoing.
"Cap" means the lesser of (a) the sum of (i) the lesser of (A) the
Borrowing Base and (B) $10,000,000 plus (ii) the lesser of (A) the amount of
cash deposited
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with the Administrative Agent to the extent such cash secures the Guarantied
Obligations under the Cash Collateral Account Agreement and (B) $12,500,000 and
(b) the aggregate amount of the Commitments.
"Capital Expenditures" means, with respect to any Person, any
expenditure of such Person to acquire, construct or lease fixed or capital
assets or additions to equipment (including renewals, improvements, capitalized
repairs, replacements and incurrence of obligations under Capital Leases) which
has been or should be capitalized on the books of such Person in accordance with
GAAP but, in any event, excluding all amounts expended with respect to the
design, development, introduction and marketing of new products and services or
improvements to existing products and services (including, without limitation,
software development costs).
"Capital Lease" means any lease which has been or should be capitalized
on the books of the lessee in accordance with GAAP.
"Capital Stock" means (a) any shares, interests, participations or
other equivalents of or interests in (however designated) corporate stock,
including, without limitation, shares of preferred or preference stock, (b) any
limited liability company interests, membership interests or other equivalent
interests or participations (however designated) in any limited liability
company and (c) any general or limited partnership interests or other interests
or participations in any partnership, joint venture, trust or similar entity, in
each case whether or not evidenced by stock certificates or similar instruments.
"Cash Collateral Account Agreement" means the Cash Collateral Account
Agreement in the form of Exhibit E to be delivered by the Individual Guarantor
under the terms of this Agreement, as amended or supplemented from time to time.
"Cash Flow Leverage Ratio" means, at any date of determination thereof,
the ratio of (a) Consolidated Debt to (b) Consolidated EBITDA for the most
recently ended Fiscal Quarter.
"'class' of Loans" shall have the meaning assigned to such term in
Section 2.01(c).
"Closing Date" means the date this Agreement has been executed by the
Borrower, the Subsidiary Borrower, the Subsidiary Guarantors, the Lenders and
the Administrative Agent.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral" means all of any Obligor's right, title and interest in
and to Property in which such Obligor has granted a Lien to the Administrative
Agent under any Facility Document.
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"Commitments" means the Revolving Credit Commitments and the Swingline
Loan Commitments.
"Compliance Certificate" means the compliance certificate in the form
of EXHIBIT B1 to be delivered by the Borrower under the terms of this Agreement.
"Consolidated Capital Expenditures" means, with respect to any fiscal
period, the aggregate amount of Capital Expenditures made by the LCC
Consolidated Entities (other than Microcell) for such period, as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Current Assets" means, at any date of determination
thereof, all assets of the LCC Consolidated Entities treated as current assets,
as determined on a consolidated basis in accordance with GAAP.
"Consolidated Current Liabilities" means, at any date of determination
thereof, all liabilities of the LCC Consolidated Entities treated as current
liabilities (other than the current portion of the Notes and the Telcom
Subordinated Note), as determined on a consolidated basis in accordance with
GAAP.
"Consolidated Debt" means, at any date of determination thereof, the
aggregate amount of Debt of the LCC Consolidated Entities, as determined on a
consolidated basis in accordance with GAAP.
"Consolidated EBIT" means, with respect to any fiscal period, the sum
of (a) Consolidated Net Income for such period, plus (b) the aggregate amount of
(i) Consolidated Income Tax Expense and (ii) Consolidated Interest Expense, to
the extent that such aggregate amount was deducted in the computation of
Consolidated Net Income for such period.
"Consolidated EBITDA" means, with respect to any fiscal period, the sum
of (a) Consolidated EBIT for such period, plus (b) the aggregate amount of
depreciation, amortization expense and non-cash accruals under the Phantom
Membership Plan, to the extent that such aggregate amount was deducted in the
computation of Consolidated EBIT for such period.
"Consolidated Income Tax Expense" means, with respect to any fiscal
period, the amount of taxes accrued by the LCC Consolidated Entities during such
period, as determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any fiscal
period, the amount of interest accrued on, and with respect to, Consolidated
Debt during such period (including, without limitation, amortization of debt
discount and financing fees and imputed interest on Capital Leases) plus all
finance charges, premiums and other fees, charges and expenses extracted from
any LCC Consolidated Entity in exchange for the forbearance from the collection
of money during such period, as determined on a consolidated basis in accordance
with GAAP.
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"Consolidated Net Income" means, with respect to any fiscal period, net
income of the LCC Consolidated Entities for such period (but in any event
excluding income resulting from the reversal of reserves taken against
receivables, promissory notes or investments in DCR or NextWave), as determined
on a consolidated basis in accordance with GAAP.
"Consolidated Net Worth" means, at any date of determination thereof,
the sum of (i) all amounts which would be included under stockholders' equity on
a consolidated balance sheet of the LCC Consolidated Entities plus (ii)
Consolidated Subordinated Debt, as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Rentals" means, with respect to any fiscal period, all
rental expense due under the leases (other than Capital Leases) of the
Consolidated Entities during such period, as determined on a consolidated basis
in accordance with GAAP.
"Consolidated Senior Interest Expense" means, with respect to any
fiscal period, the result of (a) Consolidated Interest Expense minus (b) the
amount of interest accrued on, and with respect to, Consolidated Subordinated
Debt, as determined on a consolidated basis in accordance with GAAP.
"Consolidated Subordinated Debt" means, at any date of determination
thereof, the Debt under the MCI Subordinated Notes, the Debt under the Telcom
Subordinated Note and any other indebtedness of any LCC Consolidated Entity for
borrowed money which is subordinated to the Obligations on terms and conditions
acceptable to the Required Lenders, as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Total Liabilities" means, at any date of determination
thereof, all liabilities of the LCC Consolidated Entities (other than the MCI
Subordinated Notes and the Telcom Subordinated Note), as determined on a
consolidated basis in accordance with GAAP.
"Currency Protection Agreement" means any foreign exchange contract,
currency swap agreement or other financial agreement or arrangement between one
or more Lenders and an Obligor designed to protect against fluctuations in
currency values.
"Current Ratio" means, at any date of determination thereof, the ratio
of (a) Consolidated Current Assets to (b) Consolidated Current Liabilities.
"Customer" means the account debtor with respect to any of the
Receivables.
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"DCR" means Pocket Communications, Inc., a Maryland corporation,
formerly known as DCR Communications, Inc.
"Debt" means, with respect to any Person: (a) indebtedness of such
Person for borrowed money; (b) indebtedness for the deferred purchase price of
Property or services (except trade payables in the ordinary course of business);
(c) Unfunded Benefit Liabilities of such Person; (d) all reimbursement
obligations (whether or contingent or otherwise) of any outstanding letters of
credit issued for the account of such Person; (e) obligations arising under
acceptance facilities; (f) liabilities under Guaranties of Debt of any other
Person; (g) obligations secured by any Lien on Property of such Person; (h)
obligations of such Person as lessee under Capital Leases; (i) the net
obligations of such Person in respect of Interest Rate Protection Agreements and
Currency Protection Agreements; and (j) all Capital Stock of such Person subject
to repurchase or redemption during the term of this Agreement, other than at the
sole option of such Person.
"Default" means any event which with the giving of notice or lapse of
time, or both, would become an Event of Default.
"Default Rate" means, with respect to the principal of any Loan and, to
the extent permitted by law, any other amount payable by any Obligor under this
Agreement, any Note or any other Facility Document that is not paid when due
(whether at stated maturity, by acceleration or otherwise), a rate per annum
during the period from and including the due date, to, but excluding the date on
which such amount is paid in full equal to two percent (2%) above the Variable
Rate as in effect from time to time plus the Applicable Rate (if any); provided
that, if the amount so in default is principal of a LIBO Rate Loan and the due
date thereof is a day other than the last day of the Interest Period therefor,
the "Default Rate" for such principal shall be, for the period from and
including the due date and to but excluding the last day of the Interest Period
therefor, two percent (2%) above the interest rate for such LIBO Rate Loan as
provided in Section 2.11 and, thereafter, the rate provided for above in this
definition; provided further that, if the amount so in default is principal of a
NIBO Rate Loan, the "Default Rate" for such principal shall be two percent (2%)
above the interest rate for such NIBO Rate Loan as provided in Section 2.11.
"Denomination Date" means, in relation to any borrowing, conversion or
renewal in Norwegian Krone, the date that is three Banking Days before the date
such borrowing, conversion or renewal is made.
"Dollar Equivalent" means, with respect to an amount of Norwegian Krone
on any date, the amount of Dollars that may be purchased with such amount of
Norwegian Krone at the Spot Exchange Rate with respect to Norwegian Krone on
such date.
"Dollars" and the sign "$" mean lawful money of the United States of
America.
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"Domestic Cash Equivalents" means (a) direct obligations of the United
States of America or any agency thereof with maturities of one year or less from
the date of acquisition, (b) commercial paper of a domestic issuer rated at
least "A-1" by Standard & Poor's Corporation or "P-1" by Xxxxx'x Investors
Service, Inc., (c) certificates of deposit, time deposits, repurchase
agreements, reverse repurchase agreements and bankers' acceptances with
maturities of one year or less from the date of acquisition issued by any
commercial bank operating within the United States of America having capital and
surplus in excess of $500,000,000 or (d) money market or mutual funds whose sole
investments are comprised of investments permitted under the foregoing clauses
(a) through (c).
"Domestic Plan" means any employee benefit or other plan established or
maintained, or to which contributions have been made, by the Consolidated
Entities or any ERISA Affiliate and which is covered by Title IV of ERISA, other
than a Multiemployer Plan.
"Domestic Subsidiary" means any Subsidiary of the Borrower which is not
a Foreign Subsidiary.
"Eligible Receivables" means, as of any date of determination thereof,
all Receivables of the Obligors as to which the Administrative Agent holds a
first priority perfected security interest, provided that such Receivables: (a)
arose in the ordinary course of business of the Obligors; (b) do not represent
amounts owed to the Obligors for goods shipped on a consignment or "xxxx and
hold" basis; (c) represent amounts owed for goods sold or leased or services
rendered to a Customer; (d) are payable in Dollars or Norwegian Krone; (e) do
not include any amount which is not due or has not been paid within 90 days of
the due date; (f) do not have as the Customer a Person that is the subject of
any proceeding under any bankruptcy, reorganization, arrangement, readjustment
of debt, dissolution or liquidation law; (g) do not have as the Customer any LCC
Consolidated Entity and, to the extent that the aggregate amount of such
Receivables exceeds 10% of all Receivables, any other Affiliate; (h) do not have
as the Customer a Person located outside the United States to the extent that
the aggregate amount of such Receivables exceeds 25% of all Receivables; (i) do
not include any portion of any Receivable as to which the Customer has asserted
any defense; (j) do not include that portion of any Receivable as to which any
offset or counterclaim has been asserted; (k) do not include the amount by which
the aggregate unpaid principal balance of all Receivables from a Customer
exceeds 15% of the aggregate unpaid principal balance of all Receivables from
all Customers; (l) do not include any Receivable due from a Customer if 50% or
more of the aggregate Receivables from that Customer have not been paid within
90 days of the due date; (m) do not include any Receivable arising out of any
Assigned Agreement which by its terms, forbids or prohibits the assignment of
such Receivable for collateral purposes; and (n) do not include any Receivable
the Required Lenders in the exercise of their reasonable discretion have deemed
ineligible because of the impairment of the value thereof to
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the Lenders, the impairment of the Lenders to realize such value thereof or the
uncertainty as to the creditworthiness of the Customer thereunder.
"Environmental Laws" means any and all domestic, foreign, federal,
state and local statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, licenses, agreements with Governmental Authorities or
other governmental restrictions relating to the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants, or
industrial, toxic or hazardous substances or wastes into the environment
including, without limitation, ambient air, surface water, ground water, or
land, or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of pollutants,
contaminants, or industrial, toxic or hazardous substances or wastes.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, including any rules and regulations promulgated
thereunder.
"ERISA Affiliate" means any corporation or trade or business which is a
member of any group of organizations (i) described in Section 414(b) or (c) of
the Code of which any LCC Consolidated Entity is a member, or (ii) solely for
purposes of potential liability under Section 302(c)(11) of ERISA and Section
412(c)(11) of the Code and the lien created under Section 302(f) of ERISA and
Section 412(n) of the Code, described in Section 414(m) or (o) of the Code of
which any LCC Consolidated Entity is a member.
"Event of Default" shall have the meaning assigned to such term in
Section 10.01.
"Existing Credit Agreement" shall have the meaning assigned to such
term in the recitals hereof.
"Facility Documents" means this Agreement, the Notes, the Letters of
Credit, the Assumption Agreements, the Singh Guaranty, the Interest Rate
Protection Agreements, the Currency Protection Agreements, the MCI Subordination
Agreement, the Telcom Subordination Agreement and the Security Documents, as
each may be amended or supplemented from time to time.
"Federal Funds Rate" means, for any day, the rate per annum equal to
the weighted average of the rates on overnight federal funds transactions as
published by the Federal Reserve Bank of New York for such day (or for any day
that is not a Banking Day, for the immediately preceding Banking Day).
"Fiscal Quarter" means any calendar quarter.
"Fiscal Quarter Net Worth Increase Amounts" means, with respect to each
Fiscal Quarter, (a) the greater of (i) Zero Dollars ($0) and (ii) 50% of
Consolidated
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Net Income for such Fiscal Quarter plus (b) 75% of the proceeds (net of
underwriting commissions and discounts and reasonable fees and expenses) from
the issuance of Capital Stock of the Borrower (other than via the conversion of
the MCI Subordinated Notes or the conversion of the Telcom Subordinated Note)
plus (c) 100% of the proceeds (net of underwriting commissions and discounts and
reasonable fees and expenses) from the incurrence of Consolidated Subordinated
Debt during such Fiscal Quarter plus (d) 100% of income resulting from the
reversal of reserves taken against receivables, promissory notes or investments
in DCR or NextWave during such Fiscal Quarter.
"Fiscal Year" means any calendar year.
"Fixed Rate Loan" means any LIBO Rate Loan or NIBO Rate Loan.
"Foreign Cash Equivalents" means: (a) direct obligations of, or
obligations fully guarantied or insured by, the government of the country in
which any Foreign Subsidiary is incorporated or has its principal place of
business with maturities of one year or less from the date of acquisition; and
(b) direct demand obligations issued by the principal banking institutions
located in any such country.
"Foreign Plan" means any pension plan or other deferred compensation
plan, program or arrangement maintained by any Foreign Subsidiary which may or
may not, under applicable local law, be required to be funded through a trust or
other funding vehicle.
"Foreign Subsidiary" means any Subsidiary of the Borrower which was
organized under the laws of a jurisdiction other than the United States of
America, any state thereof or the District of Columbia.
"Forfeiture Proceeding" means any action, proceeding or investigation
affecting any LCC Consolidated Entity or any Affiliate before any Governmental
Authority or the receipt of notice by any such party that any of them is a
suspect in or a target of any governmental inquiry or investigation, which may
result in an indictment of any of them or the seizure or forfeiture of any of
their respective Properties.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, applied on a basis consistent
with those used in the preparation of the financial statements referred to in
Section 6.05(a) (except for changes concurred in by the LCC Consolidated
Entities' independent public accountants).
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
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"Guarantied Obligations" means (a) the sum of (i) the principal amount
of Loans and Letter of Credit Obligations incurred in excess of the lesser of
(A) the Borrowing Base and (B) $10,000,000, plus (ii) if, at any time, after
giving effect to clause (i), the principal amount of the outstanding Loans and
Letter of Credit Obligations is greater than $7,500,000 and was equal to or less
than the Borrowing Base when incurred, the amount by which such principal amount
exceeds the Borrowing Base at such time up to a maximum of $2,500,000; provided
that in no event shall the aggregate amount of Guarantied Obligations under this
clause (a) exceed $12,500,000; (b) all unpaid interest thereon (including
interest accruing on or after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, whether or
not a claim for post-filing or post-petition interest is allowed in such
proceeding); and (c) all unpaid fees, indemnities, costs and expenses relating
to the collection thereof (including, without limitation, all fees and
disbursements of counsel to the Administrative Agent or any Lender). For
purposes of illustration only, (w) if the Borrowing Base was $10,000,000 at the
time of incurrence of $12,000,000 of Obligations and the Borrowing Base later
drops to $8,000,000, the Guarantied Obligations under clause (a) equals
$4,000,000 [(i) $2,000,000+ (ii) $2,000,000)]; (x) if the Borrowing Base was
$7,500,000 at the time of incurrence of $12,500,000 of Obligations and the
Borrowing Base later drops to $5,000,000, the Guarantied Obligations under
clause (a) equals $5,000,000 [((i) $5,000,000+ (ii) $0)]; (y) if the Borrowing
Base was $10,000,000 at the time of incurrence of $22,500,000 of Obligations and
the Borrowing Base later drops to $7,500,000, the Guarantied Obligations under
clause (a) equals $12,500,000 [(i) $12,500,000+ (ii)$2,500,000 but $12,500,000
cap]; and (z) if the Borrowing Base was $9,000,000 at the time of incurrence of
$15,000,000 of Obligations and the Borrowing Base later drops to $7,000,000, the
Guarantied Obligations under clause (a) equals $7,500,000 [(i)
$6,000,000+(ii)$1,500,000].
"Guaranty" means, with respect to any Person, guaranties, endorsements
(other than for collection in the ordinary course of business) and other
contingent obligations of such Person with respect to the obligations of any
other Person (including, but not limited to, an agreement to purchase any
obligation, stock, assets, goods or services or to supply or advance any funds,
assets, goods or services, or an agreement to maintain or cause such Person to
maintain a minimum working capital or net worth or otherwise to assure the
creditors of any such other Person against loss).
"Hazardous Materials" means any and all pollutants, contaminants, toxic
or hazardous wastes or any other substances, the removal of which is required or
the generation, manufacture, refining, production, processing, treatment,
storage, handling, transportation, transfer, use, disposal, release, discharge,
spillage, seepage, or filtration of which is restricted, prohibited or penalized
by any applicable law.
"Individual Guarantor" means Xx. Xxxxxxxx Xxxxx.
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"Intellectual Property Security Agreement" means the Intellectual
Property Security Agreement dated as of June 14, 1996 between the Borrower and
the Administrative Agent, as amended or supplemented from time to time.
"Interest Coverage Ratio" means, at any date of determination thereof,
the ratio of (a) Consolidated EBIT for the most recently ended calendar month to
(b) Consolidated Senior Interest Expense for such calendar month.
"Interest Period" means, with respect to any Fixed Rate Loan, the
period commencing on the date such Fixed Rate Loan is made, converted from a
Variable Rate Loan or renewed, as the case may be, and ending, as the Borrower
or the Subsidiary Borrower may select pursuant to Section 2.07, on (a) in the
case of LIBO Rate Loans, the numerically corresponding day in the first, second,
third, or sixth calendar month thereafter or (b) in the case of NIBO Rate Loans,
the numerically corresponding day in the first or second week or the first,
second, third, or sixth calendar month thereafter, provided that each such
Interest Period determined on the basis of calendar months which commences on
the last Banking Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Banking Day of the appropriate calendar month.
"Interest Rate Protection Agreement" means an interest rate swap, cap
or collar agreement or similar arrangement between one or more Lenders and an
Obligor providing for the transfer or mitigation of interest risks either
generally or under specific contingencies.
"Investment" means any loan or advance to any Person or any purchase or
other acquisition of any capital stock, assets, obligations or other securities
of and Person, or any capital contribution to, investment in, or other
acquisition of any interest in, any Person.
"Issuing Lender" means The Chase Manhattan Bank, a bank organized under
the laws of New York, acting in its capacity as a Lender hereunder.
"Judgment Currency" shall have the meaning assigned to such term in
Section 13.18 hereof.
"Judgment Currency Conversion Date" shall have the meaning assigned to
such term in Section 13.18 hereof.
"LCC Consolidated Entities" means the Borrower and the Subsidiaries of
the Borrower.
"Lender" shall have the meaning assigned to such term in the
introductory paragraph hereof.
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"Lending Office" means, for each Lender and for each type of Loan, the
lending office of such Lender (or of an affiliate of such Lender) designated as
such for such type of Loan on its signature page hereof or such other office of
such Lender (or of an affiliate of such Lender) as such Lender may from time to
time specify to the Administrative Agent and the Borrower or the Subsidiary
Borrower, as applicable, as the office by which its Loans of such type are to be
made and maintained.
"Letter of Credit Availability" means, at any date of determination
thereof, the amount by which (a) the lesser of (i) the result of (A) the
aggregate amount of the Revolving Credit Commitments as of such date, minus (B)
the unpaid aggregate principal amount of the Revolving Credit Loans then
outstanding and (ii) $5,000,000 exceeds (b) the aggregate amount of the Letter
of Credit Obligations at such date.
"Letter of Credit Funding" shall have the meaning assigned to such term
in Section 3.05(b) hereof.
"Letter of Credit Obligations" means, at any date of determination
thereof, all liabilities of the Borrower with respect to Letters of Credit,
whether or not any liability is contingent, including (without limitation) the
sum (without duplication) of (a) the aggregate amount available to be drawn
under the Letters of Credit then outstanding plus (b) the aggregate amount of
all unpaid Reimbursement Obligations.
"Letters of Credit" shall have the meaning assigned to such term in
Section 3.01(a) hereof.
"LIBO Base Rate" means with respect to any Interest Period for a LIBO
Rate Loan: the rate per annum (rounded upwards, if necessary, to the nearest
1/16 of one percent (1%)) quoted at approximately 11:00 a.m. London time by the
principal London branch of the Reference Lender two Banking Days prior to the
first day of such Interest Period for the offering to leading banks in the
London interbank market of Dollar or Norwegian Krone deposits in immediately
available funds, for a period, and in an amount, comparable to the Interest
Period and principal amount of the LIBO Rate Loan which shall be made.
"LIBO Rate" means, for any LIBO Rate Loan for any Interest Period
therefor, a rate per annum (rounded upwards, if necessary, to the nearest 1/100
of one percent (1%)) reasonably determined by the Administrative Agent to be
equal to the quotient of (i) the LIBO Base Rate for such LIBO Rate Loan for such
Interest Period, divided by (ii) one minus the Reserve Requirement for such LIBO
Rate Loan for such Interest Period.
"LIBO Rate Loan" means any Loan when and to the extent the interest
rate therefor is determined on the basis of the definition "LIBO Rate."
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"Lien" means any lien (statutory or otherwise), security interest,
mortgage, deed of trust, priority, pledge, charge, conditional sale, title
retention agreement, financing lease or other encumbrance or similar right of
others, or any agreement to give any of the foregoing.
"Loan" means any loan made by a Lender pursuant to Section 2.01.
"Material Adverse Effect" means any material adverse effect on (a) the
business, profits, Properties or condition of the LCC Consolidated Entities,
taken as a whole, (b) the ability of any Obligor to perform their respective
obligations under each of the Facility Documents to which it is a party, (c) the
binding nature, validity or enforceability of any of the Facility Documents or
(d) the validity, perfection, priority or enforceability of the Liens in favor
of the Administrative Agent securing the Obligations hereunder, which, in each
case, arises from, or reasonably could be expected to arise from, any action or
omission of action on the part of any LCC Consolidated Entity or the occurrence
of any event or the existence of any fact or condition in respect of any LCC
Consolidated Entity or any of their respective Properties.
"Material Contract" means any written or oral contract, instrument,
agreement, commitment, obligation, plan or arrangement to which any LCC
Consolidated Entity is a party, a copy of which would be required to be filed
with the Securities and Exchange Commission as an exhibit to a registration
statement pursuant to Item 601(b)(10) of Regulation S-K of the Securities and
Exchange Commission if such LCC Consolidated Entity were registering securities
under the Securities Act.
"Material Contract Termination" means, at any date of determination
thereof, that (a) during the 90 day period ending on such date, one or more
revenue-producing contracts between any LCC Consolidated Entity and another
Person or other Persons have been terminated by the other Person or not renewed
or extended by the other Person(s) pursuant to a renewal or extension option
therein contained, (b) such contracts represented, in the aggregate, more than
5% of the gross revenues of the LCC Consolidated Entities during the then most
recently ended Fiscal Year and (c) giving effect to the gross revenues
reasonably anticipated during the-then current Fiscal Year, the reasonably
anticipated gross revenues of the LCC Consolidated Entities for the then current
Fiscal Year will be less than 85% of those set forth for the then-current Fiscal
Year in the operating plan delivered to the Lenders.
"Material Revenue-Producing Contract" means any revenue- producing
contract between any LCC Consolidated Entity and another Person or other Persons
which represents more than 2.5% of the gross revenues of the LCC Consolidated
Entities during the then most recently ended Fiscal Year and, in the case of any
new such revenue-producing contract, any revenue-producing contract entered into
during such Fiscal Year which would represent more than 2.5% of the
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gross revenues of the LCC Consolidated Entities for the then current Fiscal Year
as set forth in its operating plan.
"MCI" means MCI Telecommunications Corporation, a Delaware corporation.
"MCI Note Purchase Agreement" means that certain Revolving Credit Note
Purchase Agreement dated as of June 27, 1994 among the Parent, the other members
of Old LCC and MCI, as amended by that certain Waiver and Amendment dated as of
May 30, 1995.
"MCI Note Purchase Documents" means the MCI Subordinated Notes, the MCI
Securityholders Agreement, the MCI Subordination Agreement and the other
agreements and instruments to be executed pursuant to the terms of each of such
MCI Note Purchase Documents.
"MCI Securityholders Agreement" means the Amended and Restated
Securityholders Agreement dated as of July 25, 1996 among the Parent, LCC,
Incorporated, TC Group, L.L.C., Old LCC and MCI, as amended by that certain
Amendment to Securityholders Agreement dated as of September 29, 1996.
"MCI Subordinated LCC Note" means that certain convertible Subordinated
Note Due 2000 in the principal amount of $20,000,000 issued by Old LCC to MCI
pursuant to the MCI Note Purchase Agreement, as amended by that certain
Amendment to Subordinated Note due 2000 dated as of July 25, 1996 and as further
amended by the Second Amendment to Subordinated Note due 2000 dated as of
October 23, 1997.
"MCI Subordinated Notes" means (a) the MCI Subordinated LCC Note and
(b) the MCI Subordinated Telcom Note.
"MCI Subordinated Telcom Note" means that certain convertible
Subordinated Note Due 2000 in the principal amount of $30,000,000 issued by the
Parent to MCI pursuant to the MCI Note Purchase Agreement, as amended by that
certain Amendment to Subordinated Note due 2000 dated as of July 25, 1996 among
the Parent, the Borrower and MCI, as further amended by that certain Second
Amendment to Subordinated Note due 2000 dated as of September 27, 1996 among the
Parent, Old LCC and MCI, as further amended by the Third Amendment to
Subordinated Note due 2000 dated as of September 27, 1996 among the Parent, Old
LCC and MCI and as further amended by the Fourth Amendment to Subordinated Note
due 2000 dated as of October 23, 1997 between the Borrower and MCI.
"MCI Subordination Agreement" means the Subordination and Intercreditor
Agreement dated as of September 30, 1996 among MCI, the Administrative Agent and
the Borrower, as amended by that certain letter dated November 7, 1996 between
MCI and the Borrower, as amended or supplemented from time to time.
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"Merger" means the merger of Old LCC with and into the Borrower, with
the Borrower being the surviving entity.
"Microcell" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"Microcell Loan Agreement" means that certain Revolving Credit Facility
and Security Agreement dated as of December 31, 1996 between the Borrower and
Microcell.
"Microcell Note" means that certain Revolving Credit Note dated
December 31, 1996 in the principal amount of $35,000,000 issued by Microcell to
the Borrower pursuant to the Microcell Loan Agreement.
"Multiemployer Plan" means a Plan defined as such in Section 3(37) of
ERISA to which contributions have been made by any LCC Consolidated Entity or
any ERISA Affiliate and which is covered by Title IV of ERISA.
"New Subsidiary Guarantor" shall have the meaning assigned to such term
in the introductory paragraph hereof.
"NextWave" means NextWave Telecom, Inc., a Delaware corporation.
"NIBO Base Rate" means with respect to any Interest Period for a NIBO
Rate Loan: the rate per annum (rounded upwards, if necessary, to the nearest
1/16 of one percent (1%)) quoted at approximately 11:00 a.m. Norwegian time by
the principal Norwegian branch of the Reference Lender two Banking Days prior to
the first day of such Interest Period for the offering to leading banks in the
Norwegian interbank market of Norwegian Krone deposits in immediately available
funds, for a period, and in an amount, comparable to the Interest Period and
principal amount of the NIBO Rate Loan which shall be made.
"NIBO Rate" means, for any NIBO Rate Loan for any Interest Period
therefor, a rate per annum (rounded upwards, if necessary, to the nearest 1/100
of one percent (1%)) reasonably determined by the Administrative Agent to be
equal to the quotient of (i) the NIBO Base Rate for such NIBO Rate Loan for such
Interest Period, divided by (ii) one minus the Reserve Requirement for such NIBO
Rate Loan for such Interest Period.
"NIBO Rate Loan" means any Loan when and to the extent the interest
rate therefor is determined on the basis of the definition "NIBO Rate."
"Norwegian Krone" and the sign "NOK" means lawful money of the Kingdom
of Norway.
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"Norwegian Krone Equivalent" means, with respect to an amount of
Dollars on any date, the amount of Norwegian Krone that may be purchased with
such amount of Dollars at the Spot Exchange Rate with respect to Dollars on such
date.
"Notes" means the Revolving Credit Notes and the Swingline Notes.
"Obligation Currency" shall have the meaning assigned to such term in
Section 13.18 hereof.
"Obligations" means the unpaid principal of and interest on (including
interest accruing on or after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, whether or
not a claim for post-filing or post-petition interest is allowed in such
proceeding) the Notes and all other obligations and liabilities of any Obligor
to the Administrative Agent or any Lender, whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, this Agreement, any Note,
any Letter of Credit, any Interest Rate Protection Agreement, any Currency
Protection Agreement, any other Facility Document and any other document made,
delivered or given in connection therewith or herewith, whether on account of
principal, interest, Guaranties, reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation, all fees and disbursements of
counsel to the Administrative Agent or any Lender) or otherwise.
"Obligors" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"Old ETP" means European Technology Partner AS, a Norwegian
corporation, prior to the closing under the ETP Asset Purchase Agreement.
"Old LCC" means LCC, L.L.C., a Delaware limited liability company,
prior to the effectiveness of the Merger.
"Parent" means Telcom Ventures, L.L.C., a Delaware limited liability
company.
"Participating Interest" means, with respect to each Letter of Credit,
(a) in the case of the Issuing Lender, its interest in such Letter of Credit
after giving effect to the granting of any participating interest therein
pursuant hereto and (b) in the case of each Participating Lender, its undivided
participating interest in such Letter of Credit.
"Participating Lender" means, with respect to any Letter of Credit, any
Lender (other than the Issuing Lender) with respect to its Participating
Interest in each Letter of Credit.
"Payor" shall have the meaning assigned to such term in Section 12.13.
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"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Phantom Membership Plan" means the LCC, L.L.C. 1994 Phantom Membership
Plan, as may amended or supplemented from time to time.
"Pledge Agreement" means the Pledge Agreement dated as of June 14, 1996
among the Obligors and the Administrative Agent, as amended or supplemented from
time to time.
"Prime Rate" means that rate of interest from time to time announced by
The Chase Manhattan Bank as its prime commercial lending rate.
"Principal Office" means the principal office of the Administrative
Agent, presently located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Pro Forma Balance Sheet" shall have the meaning assigned to such term
in Section 6.05(c).
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, and whether tangible or intangible.
"Proprietary Rights" means all of the following along with all income,
royalties, damages and payments thereon (including damages and payments for past
or future infringements or misappropriations thereof), the rights to xxx and
recover for past infringements and misappropriations thereof and any and all
corresponding rights that, now or hereafter, may be secured throughout the
world: (i) patents, patent applications, patent disclosures and inventions
(whether or not patentable and whether or not reduced to practice) and any
reissues, continuations, continuations-in-part, revisions, extensions or
reexaminations thereof; (ii) trademarks, service marks, trade dress, trade names
and corporate names and registrations, renewals and applications for
registration thereof, together with the goodwill associated therewith; (iii)
copyrights and copyrightable works and registrations, renewals and applications
for registration thereof; (iv) mask works and registrations and applications for
registration thereof; (v) computer software (including all databases, data and
documentation); (vi) trade secrets and other confidential information (including
ideas, formulas, compositions, inventions, know-how, manufacturing and
production processes and techniques, research and development information,
drawings, specifications, designs, plans, proposals, technical data,
copyrightable works, financial and marketing plans and customer and supplier
lists and information); (vii) other intellectual property rights; and (viii)
copies and tangible embodiments thereof (in whatever form or medium).
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"Xxxxxxxx Xxxxx Xxxx" means a Lien on any Property acquired by any LCC
Consolidated Entity or placed on any Property of any LCC Consolidated Entity in
order to finance the acquisition or construction of such Property or the
construction of improvements located on such Property, or the assumption of any
Lien on Property existing at the time of the acquisition of such Property or of
the Person holding such Property or a Lien incurred in connection with any
conditional sale or other title retention agreement or a Capital Lease.
"Receivables" shall have the meaning assigned to such term in the
Security Agreement.
"Reference Lender" means The Chase Manhattan Bank (or, with respect to
Fixed Rate Loans, if The Chase Manhattan Bank no longer quotes on the London or
Norwegian interbank market, such successor leading bank in the London or
Norwegian interbank market which shall be reasonably appointed by the
Administrative Agent and shall be reasonably acceptable to the Borrower).
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as the same may be amended or supplemented from time to
time.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as the same may be amended or supplemented from time to
time.
"Regulatory Change" means, with respect to any bank, any change after
the date of this Agreement in United States federal, state, municipal or foreign
laws or regulations (including without limitation Regulation D) or the adoption
or making after such date of any written interpretations, directives or requests
applying to a class of banks of which such bank is a member, of or under any
United States, federal, state, municipal or foreign laws or regulations (whether
or not having the force of law) by any court or governmental or monetary
authority charged with the interpretation or administration thereof.
"Reimbursement Obligation" means the obligation of the Borrower to
reimburse the Issuing Lender in accordance with the terms of this Agreement for
the payment made by the Issuing Lender under any Letter of Credit.
"Required Lenders" means, at any time while no Obligations are
outstanding, Lenders having at least 51% of the aggregate amount of the
Commitments and, at any time while Obligations are outstanding, Lenders holding
at least 51% of the aggregate amount of Obligations.
"Required Payment" shall have the meaning assigned to such term in
Section 12.13.
"Reserve Requirement" means for any Fixed Rate Loan for any Interest
Period therefor, the average maximum rate (expressed as a decimal) at which
reserves (including any marginal, supplemental or emergency reserves) are
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required to be maintained during such Interest Period under Regulation D by
member banks of the Federal Reserve System in New York City with deposits
exceeding $1,000,000,000 against "Eurocurrency liabilities" (as such term is
used in Regulation D). Without limiting the effect of the foregoing, the Reserve
Requirement shall reflect any other reserves required to be maintained by such
member banks by reason of any Regulatory Change against (i) any category of
liabilities which includes deposits by reference to which the LIBO Base Rate or
NIBO Base Rate for Fixed Rate Loans is to be determined as provided in the
definition of "LIBO Base Rate" or "NIBO Base Rate" in this Section 1.01 or (ii)
any category of extensions of credit or other assets which include Fixed Rate
Loans.
"Restricted Payment" means, with respect to any Person, (a) the
declaration or payment of any dividends by such Person, or the purchase,
redemption, retirement or other acquisition for value of any of its Capital
Stock now or hereafter outstanding, or the making of any distribution of assets
to its stockholders, partners or members as such whether in cash, assets or in
obligations of such Person, or the allocation or other setting apart of any sum
for the payment of any dividend or distribution on, or for the purchase,
redemption, retirement or other acquisition of any shares of its Capital Stock,
or the making of any other distribution, by reduction of capital or otherwise,
in respect of any shares of its Capital Stock (including, without limitation,
any distributions made with respect to measurement shares for which stock
appreciation rights or phantom rights have been issued but in any event
excluding non-cash accruals under the Phantom Membership Plan) or (b) the making
of payments of interest on, or payments or prepayments of principal of, or
payments (or setting apart of money for a sinking or other analogous fund) for
the purchase, redemption, retirement or other acquisition of principal or
interest, on Consolidated Subordinated Debt.
"Revolving Credit Commitment" means, with respect to each Lender, the
obligation of such Lender to make its Revolving Credit Loans under this
Agreement in the aggregate principal amount set forth in SCHEDULE I, as such
amount may be reduced or otherwise modified from time to time.
"Revolving Credit Commitment Percentage" means, as to any Lender at any
date of determination thereof, the percentage of the aggregate Revolving Credit
Commitments constituted by such Lender's Revolving Credit Commitment at such
date.
"Revolving Credit Loan" means any loan made by a Lender pursuant to
Section 2.01(a).
"Revolving Credit Notes" means the promissory notes issued by the
Borrower in the form of EXHIBIT A1 hereto evidencing the Revolving Credit Loans
made by a Lender hereunder and all promissory notes delivered in substitution or
exchange therefor, as amended or supplemented from time to time.
"Revolving Credit Termination Date" means March 31, 2000.
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"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreement" means the Security Agreement dated as of June 14,
1996 among the Obligors and the Administrative Agent, as amended or supplemented
from time to time.
"Security Documents" means the Security Agreement, the Intellectual
Property Security Agreement, the Pledge Agreement, the Cash Collateral Account
Agreement and each other security document that may from time to time be
delivered to the Administrative Agent (including all financing statements,
fixture filings, mortgages, assignments and stock certificates delivered to the
Administrative Agent).
"Significant Subsidiary" means any Subsidiary of the Borrower other
than a Subsidiary of the Borrower which, if aggregated with all other
Subsidiaries of the Borrower which are not Obligors and considered as a single
Subsidiary, would not meet the definition of a "significant subsidiary"
contained in Regulation S-X of the Securities and Exchange Commission, as in
effect on the date hereof.
"Singh Guaranty" means the Unconditional Guaranty in the form of
Exhibit D to be delivered by the Individual Guarantor under the terms of this
Agreement, as amended or supplemented from time to time.
"Spot Exchange Rate" means, on any date of determination thereof, (a)
with respect to Norwegian Krone, the spot rate at which Dollars are offered on
such day by the principal London branch of the Reference Lender at approximately
11:00 a.m. (London time) and (b) with respect to Dollars, the spot rate at which
Norwegian Krone is offered on such date by the principal London branch for
Dollars at approximately 11:00 a.m. (London time). For purposes of determining
the Spot Exchange Rate in connection with a borrowing, conversion or renewal in
Norwegian Krone, such Spot Exchange Rate shall be determined as of the
Denomination Date for such borrowing, conversion or renewal with respect to
transactions in Norwegian Krone that will settle on the date of such borrowing,
conversion or renewal.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company or other entity of which at least a
majority of the Voting Stock having ordinary voting power (absolutely or
contingently) for the election of directors or other persons performing similar
functions are at the time owned directly or indirectly by such Person.
"Wholly-Owned Subsidiary" means, with respect to any Person, any such
corporation, partnership, limited liability company or other entity of which all
of such Capital Stock are so owned by such Person.
"Subsidiary Borrower" shall have the meaning assigned to such term in
the introductory paragraph hereof.
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"Subsidiary Guarantors" shall have the meaning assigned to such term in
the introductory paragraph hereof.
"Swingline Loan" means any loan made by a Lender pursuant to Section
2.01(b).
"Swingline Loan Commitment" means, with respect to each Lender, the
obligation of such Lender to make its Swingline Loans under this Agreement in
the aggregate principal amount set forth in SCHEDULE I, as such amount may be
reduced or otherwise modified from time to time.
"Swingline Loan Termination Date" means March 31, 2000.
"Swingline Notes" means the promissory notes issued by the Subsidiary
Borrower in the form of EXHIBIT A2 hereto evidencing the Swingline Loans made by
a Lender hereunder and all promissory notes delivered in substitution or
exchange therefor, as amended or supplemented from time to time.
"Taxes" shall have the meaning assigned to such term in Section 4.06
hereof.
"Telcom Documents" means the Telcom Subordinated Notes, the Telcom
Subordination Agreement and the other agreements and instruments to executed
pursuant to the terms of each of such Telcom Documents.
"Telcom Subordinated Note" means that certain Convertible Subordinated
Promissory Note dated January 28, 1999 in the principal amount of $5,000,000
issued by the Borrower to the Parent due April 30, 2000.
"Telcom Subordination Agreement" means that certain Subordination and
Intercreditor Agreement dated as of January 28, 1999 among the Parent, the
Borrower and the Administrative Agent, as amended or supplemented from time to
time.
"Termination Date" means, with respect to any Revolving Credit Loan,
the Revolving Credit Termination Date and, with respect to any Swingline Loan,
the Swingline Loan Termination Date.
"'type' of Revolving Credit Loans" shall have the meaning assigned to
such term in Section 2.01(c).
"'type' of Swingline Loans" shall have the meaning assigned to such
term in Section 2.01(c).
"UCP" means the Uniform Customs and Practice for Documentary Credits
(1993 Revision), International Chamber of Commerce, Publication No. 500.
"Unconditional Guaranty" shall have the meaning assigned to such term
in Section 11.01.
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"Unfunded Benefit Liabilities" means, with respect to any Domestic Plan
or Foreign Plan, the amount (if any) by which the present value of all benefit
liabilities (within the meaning of Section 4001(a)(16) of ERISA or within the
meaning of any similar foreign law) under such Domestic Plan or Foreign Plan
exceeds the fair market value of all assets of such Domestic Plan or Foreign
Plan allocable to such benefit liabilities, as determined on the most recent
valuation date of such Domestic Plan or Foreign Plan and in accordance with the
provisions of ERISA or such similar foreign law for calculating the potential
liability of any LCC Consolidated Entity or any ERISA Affiliate under Title IV
of ERISA or such similar foreign law.
"Variable Rate" means, for any day, the higher of (a) the Federal Funds
Rate for such day plus 1/2 of one percent and (b) the Prime Rate for such day.
"Variable Rate Loan" means any Revolving Credit Loan when and to the
extent the interest rate for such Revolving Credit Loan is determined in
relation to the Variable Rate.
"Voting Stock" means, with respect to any Person, the Capital Stock of
such Person of any class or classes, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of members of the
Board of Directors (or Persons performing similar functions, including, without
limitation, the members of any members' committee or similar committee of a
limited liability company) of such Person, including in any event, without
limitation, any membership interest or other interest in a limited liability
company which is ordinarily, in the absence of contingencies, entitled to vote
or consent with respect to matters affecting the management or conduct of
business of such limited liability company.
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SECTION 1.02. ACCOUNTING TERMS. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP, and all financial
data required to be delivered hereunder shall be prepared in accordance with
GAAP.
ARTICLE 2. THE CREDIT.
SECTION 2.01. LOANS. (a) Subject to the terms and conditions of this
Agreement, each of the Lenders severally agrees to make revolving credit loans
(the "Revolving Credit Loans") to the Borrower from time to time from and
including the Closing Date to but excluding the Revolving Credit Termination
Date, in such amounts that the sum of (i) the aggregate principal amount of such
Lender's Revolving Credit Loans at any one time outstanding plus (ii) such
Lender's pro rata share of the Letter of Credit Obligations then outstanding
does not exceed the amount of its Revolving Credit Commitment. The Revolving
Credit Loans shall be due and payable on the Revolving Credit Termination Date.
(b) Subject to the terms and conditions of this Agreement, each of
the Lenders severally agrees to make a swingline loan (the "Swingline Loans") to
the Subsidiary Borrower from time to time from and including the date hereof to
and including the Swingline Termination Date, in an amount up to but not
exceeding in the aggregate principal amount, the amount of its Swingline
Commitment. The Swingline Loans shall be due and payable on the Swingline
Termination Date.
(c) The Loans shall be outstanding as Revolving Credit Loans or
Swingline Loans (each a "class" of Loans). The Revolving Credit Loans may be
outstanding at the Borrower's option as Variable Rate Loans or LIBO Rate Loans
(each a "type" of Revolving Credit Loans) and the Swingline Loans may be
outstanding at the Subsidiary Borrower's option as LIBO Rate Loans or NIBO Rate
Loans (each a "type" of Swingline Loans). Each type of Loans of each Lender
shall be made and maintained at such Lender's Lending Office for such type of
Loans.
(d) The Swingline Loans shall be made in Norwegian Krone in an
amount equal to the Norwegian Krone Equivalent of the Dollar amount specified in
the notice of each borrowing pursuant to Section 2.09, as determined by the
Administrative Agent as of the Denomination Date for such borrowing (which
determination shall be conclusive absent manifest error). For purposes of
determining the amount outstanding under any Lender's Swingline Loan
Commitments, each Swingline Loan shall be the Dollar Equivalent for such
Swingline Loan as of the Denomination Date.
SECTION 2.02. THE NOTES. The Revolving Credit Loans of each Lender
shall be evidenced by a single promissory note in favor of such Lender in the
form of EXHIBIT A1, dated September 30, 1996, duly completed and executed by the
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Borrower. The Swingline Loans of each Lender shall be evidenced by a single
promissory note in favor of such Lender in the form of EXHIBIT A2, dated
December 15, 1997, duly completed and executed by the Subsidiary Borrower.
SECTION 2.03. PURPOSE. The Borrower and the Subsidiary Borrower shall
use the proceeds of the Loans for general corporate purposes including, without
limitation, working capital. Such proceeds shall not be used for the purpose,
whether immediate, incidental or ultimate, of buying or carrying "margin stock"
within the meaning of Regulation U.
SECTION 2.04. BORROWING PROCEDURES. The Borrower or the Subsidiary
Borrower, as applicable, shall give the Administrative Agent notice (which may
be telephonic if confirmed by telex, telecopy or other writing) of each
borrowing to be made hereunder as provided in Section 2.09. Not later than 12:00
noon New York, New York time on the date specified for such borrowing hereunder,
each Lender shall, through its Lending Office, subject to the conditions of this
Agreement, make the amount of the Loan to be made by it on such day available to
the Administrative Agent at the Principal Office in immediately available funds
for the account of the Administrative Agent. The amount so received by the
Administrative Agent shall, subject to the conditions of this Agreement, be made
available to the Borrower or the Subsidiary Borrower, as applicable, in
immediately available funds, on the date specified for such borrowing in such
Person's notice, by the Administrative Agent by crediting an account of the
Borrower or the Subsidiary Borrower, as applicable, designated by such Person
and maintained with the Administrative Agent at the Principal Office.
SECTION 2.05. OPTIONAL PREPAYMENTS AND CONVERSIONS. The Borrower or the
Subsidiary Borrower, as applicable, shall have the right to make prepayments of
principal without penalty or premium, or to convert one type of Revolving Credit
Loans into another type of Revolving Credit Loans or to convert one type of
Swingline Loans into another type of Swingline Loans, at any time or from time
to time; provided that: (a) the Borrower or the Subsidiary Borrower, as
applicable, shall give the Administrative Agent notice of each such prepayment
or conversion as provided in Section 2.09; and (b) Fixed Rate Loans may be
prepaid or converted only on the last day of an Interest Period for such Fixed
Rate Loans unless the Borrower or the Subsidiary Borrower, as applicable, agrees
to provide to the Administrative Agent for the account of each Lender
compensation in accordance with Section 4.05.
SECTION 2.06. MANDATORY PREPAYMENTS. (a) The aggregate amount of the
Loans and the Letter of Credit Obligations outstanding at any time shall never
exceed the Cap. If any time prior to the Termination Date, the aggregate amount
of all Loans and the Letter of Credit Obligations shall exceed the Cap, the
Borrower or the Subsidiary Borrower shall repay the Lenders forthwith such
amounts as may be necessary to eliminate such excess (and if the Loans cannot be
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repaid to eliminate any such excess which is due to the amount of outstanding
Letters of Credit, the Borrower shall deposit with the Administrative Agent
sufficient cash collateral to cover such excess), and the failure of the
Borrower or the Subsidiary Borrower to make and the Lenders to receive such
payment (or the failure of the Borrower to deposit such cash collateral) shall
constitute an Event of Default.
(b) The aggregate amount of Available Liquidity shall not be less
than $2,500,000. If any time prior to the Termination Date, the aggregate amount
of Available Liquidity is less than $2,500,000, the Borrower or the Subsidiary
Borrower shall repay the Lenders within 15 days of such occurrence such amounts
as may be necessary to eliminate such deficit (and if the Loans cannot be repaid
to eliminate any such deficit which is due to the amount of outstanding Letters
of Credit, the Borrower shall deposit with the Administrative Agent sufficient
cash collateral to cover to eliminate such deficit), and the failure of the
Borrower or the Subsidiary Borrower to make and the Lenders to receive such
payment (or the failure of the Borrower to deposit such cash collateral) shall
constitute an Event of Default.
(c) There shall be at all times an amount in cash deposited with
the Administrative Agent under the Cash Collateral Account Agreement equal to
the aggregate amount of the then outstanding Guarantied Obligations (but
specifically excluding amounts due under clause (a)(ii) of the definition of
"Guarantied Obligations", interest thereon and fees relating thereto). If any
time prior to the Termination Date, the aggregate amount of all Guarantied
Obligations exceeds the cash so deposited, either (i) the Individual Guarantor
shall forthwith deposit additional cash as may be necessary to eliminate such
excess (provided that the Individual Guarantor shall not have the obligation to
deposit cash in excess of that required under the first sentence of this Section
2.06(c)) or (ii) the Borrower or the Subsidiary Borrower shall repay the Lenders
forthwith such amounts as may be necessary to eliminate such excess (and if the
Loans cannot be repaid to eliminate any such excess which is due to the amount
of outstanding Letters of Credit, the Borrower shall deposit with the
Administrative Agent sufficient cash collateral to cover such excess), and the
failure of the Individual Guarantor to deposit such cash or the Borrower or the
Subsidiary Borrower to make and the Lenders to receive such payment (or the
failure of the Borrower to deposit such cash collateral) shall constitute an
Event of Default.
(d) Any payments of principal under the Microcell Note and the
Microcell Loan Agreement shall be used to prepay the principal of Loans
outstanding (and, to the extent that all Loans are repaid, to cash collateralize
Letters of Credit) and the Commitments shall be permanently reduced in the
amount of such payments.
SECTION 2.07. INTEREST PERIODS: RENEWALS. (a) In the case of each Fixed
Rate Loan, the Borrower or the Subsidiary Borrower, as applicable, shall
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select an Interest Period of any duration in accordance with the definition of
Interest Period in Section 1.01, subject to the following limitations: (i) no
Interest Period may extend beyond the Termination Date; (ii) notwithstanding
clause (i) above, no Interest Period shall have a duration less than one month
(or, in the case of NIBO Rate Loans, two weeks), and if any such proposed
Interest Period would otherwise be for a shorter period, such Interest Period
shall not be available; (iii) if an Interest Period would end on a day which is
not a Banking Day, such Interest Period shall be extended to the next Banking
Day, unless such Banking Day would fall in the next calendar month in which
event such Interest Period shall end on the immediately preceding Banking Day;
and (iv) no more than ten Interest Periods of each Lender may be outstanding at
any one time.
(b) Upon notice to the Administrative Agent as provided in Section
2.09, the Borrower or the Subsidiary Borrower, as applicable, may renew any
Fixed Rate Loan on the last day of the Interest Period therefor as the same type
of Loan with an Interest Period of the same or different duration in accordance
with the limitations provided above. If the Borrower or the Subsidiary Borrower,
as applicable, shall fail to give notice to the Administrative Agent of such a
renewal, (i) in the case of a Fixed Rate Loan denominated in Dollars, such Fixed
Rate Loan shall automatically become a Variable Rate Loan on the last day of the
current Interest Period and (ii) in the case of a Fixed Rate Loan denominated in
Norwegian Krone, such Fixed Rate Loan shall automatically be a NIBO Loan
denominated in Norwegian Krone having an Interest Period of one month.
SECTION 2.08. CHANGES OF COMMITMENTS. The Borrower or the Subsidiary
Borrower, as applicable, shall have the right to reduce or terminate the amount
of unused Commitments at any time or from time to time, provided that: (i) the
Borrower or the Subsidiary Borrower, as applicable, shall give notice of each
such reduction or termination to the Administrative Agent as provided in Section
2.09; and (ii) each partial reduction shall be in an aggregate amount at least
equal to $1,000,000. The Commitments once reduced or terminated may not be
reinstated.
SECTION 2.09. CERTAIN NOTICES. Notices by the Borrower or the
Subsidiary Borrower, as applicable, to the Administrative Agent of each
borrowing pursuant to Section 2.04, each prepayment or conversion pursuant to
Section 2.05 and each renewal pursuant to Section 2.07, and each reduction or
termination of the Commitments pursuant to Section 2.08 shall be irrevocable and
shall be effective only if received by the Administrative Agent not later than
11:00 a.m. New York, New York time, and (a) in the case of borrowings and
prepayments of, conversions into and (in the case of Fixed Rate Loans) renewals
of (i) Variable Rate Loans, given the same Banking Day; and (ii) Fixed Rate
Loans, given three Banking Days prior thereto; and (b) in the case of reductions
or termination of the Commitments, given three Banking Days prior thereto. Each
such notice shall specify the class and type of the Loans to be borrowed,
prepaid, converted or renewed and the amount thereof
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(subject to Section 2.11) (and, in the case of a conversion, the type of Loan to
result from such conversion, and, in the case of a Fixed Rate Loan, the Interest
Period therefor) and the date of the borrowing, prepayment, conversion or
renewal (which shall be a Banking Day). Each such notice of reduction or
termination shall specify the amount of the Commitments to be reduced or
terminated. The Administrative Agent shall promptly notify the Lenders of the
contents of each such notice.
SECTION 2.10. MINIMUM AMOUNTS. Except for borrowings which exhaust the
full remaining amount of the Commitments, prepayments or conversions which
result in the prepayment or conversion of all Loans of a particular type or
class or conversions made pursuant to Section 4.04, each borrowing, prepayment,
conversion and renewal of principal of Loans of a particular type shall be in an
amount not less than (i) $250,000 in the aggregate for all Lenders in the case
of Variable Rate Loans and (ii) $1,000,000 (or the Dollar Equivalent thereof) in
the aggregate for all Lenders (plus increments of $100,000 (or the Dollar
Equivalent thereof) in excess thereof) in the case of Fixed Rate Loans unless
such minimum amount is waived by the Required Lenders (borrowings, prepayments,
conversions or renewals of or into Loans of different types or, in the case of
Fixed Rate Loans, having different Interest Periods at the same time hereunder
to be deemed separate borrowings, prepayments, conversions and renewals for the
purposes of the foregoing, one for each type or Interest Period). Anything in
this Agreement to the contrary notwithstanding, the aggregate principal amount
of Fixed Rate Loans having concurrent Interest Periods shall be at least equal
to $500,000 (or, in the case of NIBO Rate Loans, the Dollar Equivalent of
$100,000).
SECTION 2.11. INTEREST. (a) Interest shall accrue on the outstanding
and unpaid principal amount of each Loan for the period from and including the
date of such Loan to but excluding the date such Loan is due at the following
rates per annum: (i) for a Variable Rate Loan, at a variable rate per annum
equal to the Variable Rate plus the Applicable Rate and (ii) for a Fixed Rate
Loan, at a fixed rate equal to the LIBO Rate or NIBO Rate plus the Applicable
Rate. If an Event of Default shall exist, interest shall accrue on the
outstanding principal amount of any Loan and any other amount payable by the
Borrower or the Subsidiary Borrower hereunder, under any Note or under any other
Facility Document to the fullest extent permitted by law from and including such
due date to but excluding the date such amount is paid in full or such Event of
Default is cured at the Default Rate.
(b) The interest rate on each Variable Rate Loan shall change when
the Variable Rate changes and interest on each such Variable Rate Loan shall be
calculated on the basis of a year of 365/366 days for the actual number of days
elapsed. Interest on each Fixed Rate Loan shall be calculated on the basis of a
year of 360 days for the actual number of days elapsed. Promptly after the
determination of any interest rate provided for herein or any change therein,
the
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Administrative Agent shall notify the Borrower, the Subsidiary Borrower and the
Lenders.
(c) Accrued interest shall be due and payable in arrears upon any
repayment of principal or conversion and (i) for each Variable Rate Loan, on the
fifteenth day of each March, June, September and December commencing the first
such date after such Variable Rate Loan; and (ii) for each Fixed Rate Loan, on
the last day of the Interest Period with respect thereto and, in the case of an
Interest Period greater than three months or 90 days, at three-month intervals
after the first day of such Interest Period; provided that interest accruing at
the Default Rate shall be due and payable from time to time on demand of the
Administrative Agent.
SECTION 2.12. FEES. The Borrower shall pay to the Administrative Agent
for the account of each Lender a facility fee on the aggregate Commitments of
such Lender for the period from and including the date hereof to the earlier of
the date all of the Commitments are terminated or the Termination Date at a rate
per annum equal to the Applicable Rate, calculated in each case on the basis of
a year of 360 days for the actual number of days elapsed. The accrued facility
fees shall be due and payable in arrears upon any reduction or termination of
the Commitments and on the fifteenth day of each March, June, September and
December, commencing on the first such date after the Closing Date.
SECTION 2.13. PAYMENTS GENERALLY. All payments under this Agreement,
the Revolving Credit Notes and the other Facility Documents shall be made in
Dollars and all payments under the Swingline Notes shall be made in Norwegian
Krone, in each case in immediately available funds not later than 11:00 a.m. New
York, New York time on the relevant dates specified above or in such Facility
Document (each such payment made after such time on such due date to be deemed
to have been made on the next succeeding Banking Day) by, unless the
Administrative Agent agrees to accept payment by other means, the debiting by
the Administrative Agent for the account of the applicable Lending Office of
each Lender, or by any Lender for whose account any such payment is to be made,
of the amount of any such payment from any ordinary deposit account of the
Borrower or the Subsidiary Borrower, as applicable, with the Administrative
Agent or such Lender, as the case may be, and the Administrative Agent so doing
shall promptly notify the Borrower or the Subsidiary Borrower, as applicable,
and any Lender so doing shall promptly notify the Administrative Agent which in
turn shall promptly notify the Borrower or the Subsidiary Borrower, as
applicable. The Borrower or the Subsidiary Borrower, as applicable, shall, at
the time of making each optional payment under this Agreement, any Note or any
other Facility Document, specify to the Administrative Agent the principal or
other amount payable by the Borrower or the Subsidiary Borrower under this
Agreement, such Note or such other Facility Document to which such payment is to
be applied (and in the event that it fails to so specify, or if a Default or
Event of Default has occurred and is continuing, the Administrative Agent may
apply such payment as it may elect in its sole discretion
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(subject to Section 11.16)). If the due date of any payment under this
Agreement, any Note or any other Facility Document would otherwise fall on a day
which is not a Banking Day, such date shall be extended to the next succeeding
Banking Day and interest shall be payable for any principal so extended for the
period of such extension. Each payment received by the Administrative Agent
hereunder, under any Note or any other Facility Document for the account of a
Lender shall be paid promptly to such Lender, in immediately available funds,
for the account of such Lender's Lending Office.
ARTICLE 3. THE LETTERS OF CREDIT .
SECTION 3.01. LETTERS OF CREDIT. (a) Subject to the terms and
conditions of this Agreement, the Issuing Lender, on behalf of the Lenders, and
in reliance on the agreement of the Lenders set forth in Section 3.04, agrees to
issue on any Banking Day prior to the Revolving Credit Termination Date, for the
account of the Borrower, irrevocable documentary and standby letters of credit
or bank guarantees in such form as may from time to time be approved by the
Issuing Lender acting reasonably (together with the applications therefor, the
"Letters of Credit"); provided that on the date of the issuance of any Letter of
Credit, and after giving effect to such issuance, the Letter of Credit
Obligations shall not exceed the Letter of Credit Availability.
(b) Each Letter of Credit shall (i) have an expiry date no later
than the earlier of (A) one year from the date of issuance provided that such
Letter of Credit may automatically renew for subsequent one year terms upon the
failure of the Issuing Lender to provide sixty days' prior written notice of
termination to the Borrower and (B) the Revolving Credit Termination Date, (ii)
be denominated in Dollars, (iii) be in a minimum face amount of $100,000 and
(iv) provide for the payment of sight drafts when presented for honor thereunder
in accordance with the terms thereof and when accompanied by the documents
described therein or when such documents are presented, as the case may be.
SECTION 3.02. PURPOSES. The Borrower shall use the Letters of Credit
for the purpose of securing obligations incurred in the ordinary course of
business.
SECTION 3.03. PROCEDURES FOR ISSUANCE OF LETTERS OF CREDIT . The
Borrower may from time to time request that the Issuing Lender issue a Letter of
Credit by delivering to the Issuing Lender at its address for notices specified
herein an application therefor in such form as may from time to time be approved
by the Issuing Lender acting reasonably, completed to the reasonable
satisfaction of the Issuing Lender, and such other certificates, documents and
other papers and information as the Issuing Lender may reasonably request. Upon
receipt of any application, the Issuing Lender will process such application and
the certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the requested
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Letter of Credit in such customized form as may reasonably be requested by the
Borrower (but in no event shall the Issuing Lender issue any Letter of Credit
later than five Banking Days after receipt of the application therefor and all
such other certificates, documents and other papers and information relating
thereto) by issuing the original of such Letter of Credit to the beneficiary
thereof or as otherwise may be agreed by the Issuing Lender and the Borrower.
The Issuing Lender shall furnish a copy of such Letter of Credit to the Borrower
promptly following the issuance thereof.
SECTION 3.04. PARTICIPATING INTERESTS . In the case of each Letter of
Credit, effective as of the date of the issuance thereof, the Issuing Lender
agrees to allot and does allot to each other Lender, and each such Lender
severally and irrevocably agrees to take and does take a Participating Interest
in such Letter of Credit in a percentage equal to such Lender's pro rata share
of the Letter of Credit Obligations (calculated based on its Revolving Credit
Commitment Percentage). On the date that any Lender becomes a party to this
Agreement in accordance with Section 12.05, Participating Interests in any
outstanding Letter of Credit held by the transferor Lender from which such
transferee Lender acquired its interest hereunder shall be proportionately
reallotted between such transferee Lender and such transferor Lender. Each
Participating Lender hereby agrees that its obligation to participate in each
Letter of Credit, and to pay or to reimburse the Issuing Lender for its
participating share of the drafts drawn thereunder, is absolute, irrevocable and
unconditional and shall not be affected by any circumstances whatsoever,
including, without limitation, the occurrence and continuance of any Default or
Event of Default, and that each such payment shall be made without any offset,
abatement, withholding or other reduction whatsoever.
SECTION 3.05. PAYMENTS . (a) In order to induce the Issuing Lender to
issue the Letters of Credit, the Borrower hereby agrees to reimburse the Issuing
Lender, unless such Reimbursement Obligation has been accelerated pursuant to
Section 10.02, by not later than 1:00 p.m., New York City time, on each date
that the Borrower has been notified by the Issuing Lender that any draft
presented under any Letter of Credit is paid by the Issuing Lender, for (i) the
amount of the draft paid by the Issuing Lender and (ii) the amount of any taxes,
fees, charges or other reasonable costs or expenses whatsoever incurred by the
Issuing Lender in connection with any payment made by the Issuing Lender under,
or with respect to, such Letter of Credit. Each such payment shall, subject to
the next sentence hereof, be made to the Issuing Lender at its office specified
in Section 12.06, in lawful money of the United States and in immediately
available funds by not later than 1:00 p.m., New York City time, on the day that
payment is made by the Issuing Lender (or, if such drawing occurs after 1:00
p.m. New York City time, on the next succeeding Banking Day). If such payment is
not made in full, all amounts remaining unpaid by the Borrower under this
Section 3.05 shall, to the extent otherwise permitted hereunder, automatically
be deemed to be a borrowing as Revolving Credit Loans bearing interest at the
Variable Rate plus the Applicable
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Rate. Except as otherwise permitted by the preceding sentence, interest on any
and all amounts remaining unpaid by the Borrower under this Section 3.05 at any
time from the date such amounts become payable (whether at stated maturity, by
acceleration or otherwise) until payment in full shall be payable to the Issuing
Lender on demand at a fluctuating rate per annum equal to the Default Rate.
(b) In the event that the Issuing Lender makes a payment (a
"Letter of Credit Funding") under any Letter of Credit and is not reimbursed in
full therefor on the date of such Letter of Credit Funding, in accordance with
the terms hereof, the Issuing Lender will promptly through the Administrative
Agent notify each Participating Lender that acquired its Participating Interest
in such Letter of Credit from the Issuing Lender. No later than the close of
business on the date such notice is given if such notice is given, each such
Participating Lender will transfer to the Administrative Agent, for the account
of the Issuing Lender, in immediately available funds, an amount equal to such
Participating Lender's pro rata share of the unreimbursed portion of such Letter
of Credit Funding (calculated based on its Revolving Credit Commitment
Percentage), together with interest, if any, accrued thereon from and including
the date of such transfer at a rate per annum equal to the Federal Funds Rate
plus two percent (2%).
(c) Whenever, at any time after the Issuing Lender has made a
Letter of Credit Funding and has received from any Participating Lender such
Participating Lender's pro rata share of the unreimbursed portion of such Letter
of Credit Funding, the Issuing Lender receives any reimbursement on account of
such unreimbursed portion or any payment of interest on account thereof, the
Issuing Lender will distribute to the Administrative Agent, for the account of
such Participating Lender, its pro rata share thereof; provided, however, that
in the event that the receipt by the Issuing Lender of such reimbursement or
such payment of interest (as the case may be) is required to be returned, such
Participating Lender will promptly return to the Administrative Agent, for the
account of the Issuing Lender, any portion thereof previously distributed by the
Issuing Lender to it.
SECTION 3.06. FURTHER ASSURANCES. The Borrower hereby agrees to do and
perform any and all acts and to execute any and all further instruments from
time to time reasonably requested by the Issuing Lender more fully to effect the
purposes of this Agreement and the issuance of the Letters of Credit hereunder.
SECTION 3.07. OBLIGATIONS ABSOLUTE. The payment obligations of the
Borrower under Section 3.05 shall be unconditional and irrevocable and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances, including, without limitation, the following circumstances:
(a) the existence of any claim, set-off, defense or other right
which the Borrower may have at any time against any beneficiary, or any
transferee, of any Letter of Credit (or any Persons for whom any such
beneficiary or any such
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transferee may be acting), the Issuing Lender or any Participating Lender, or
any other Person, whether in connection with this Agreement, any other Facility
Document, the transactions contemplated herein, or any unrelated transaction;
(b) any statement or any other document presented under any Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect,
provided that this subparagraph (b) shall not relieve the Issuing Lender of any
liability determined to have resulted from the gross negligence or willful
misconduct of the Issuing Lender;
(c) payment by the Issuing Lender under any Letter of Credit
against presentation of a draft or certificate which does not comply with the
terms of such Letter of Credit, provided that this subparagraph (c) shall not
relieve the Issuing Lender of any liability determined to have resulted from the
gross negligence or willful misconduct of the Issuing Lender; or
(d) any other circumstances or happening whatsoever, whether or
not similar to any of the foregoing, provided that this subparagraph (d) shall
not relieve the Issuing Lender of any liability determined to have resulted from
the gross negligence or willful misconduct of the Issuing Lender.
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SECTION 3.08. CASH COLLATERAL ACCOUNT. If the Commitments are duly
terminated and all amounts owing under this Agreement, the Notes and the
Reimbursement Obligations become due and payable pursuant to Section 10, the
Borrower shall deposit with the Administrative Agent, on the date such
obligations become due and payable, an amount in cash or Domestic Cash
Equivalents equal to the Letter of Credit Obligations as of such date and the
Letter of Credit fees in accordance with Section 3.09. Such amount shall be
deposited in a cash collateral account to be established by the Administrative
Agent, for the benefit of the Issuing Lender and the Participating Lenders, and
shall constitute collateral security for the Letter of Credit Obligations and
other amounts owing hereunder. All amounts in such cash collateral account shall
be maintained pursuant to a cash collateral account agreement which shall grant
to the Administrative Agent a security interest in all such funds and in any
investments made therewith or proceeds thereof to secure payment to the
Administrative Agent of Reimbursement Obligations with respect to outstanding
Letters of Credit. In the event that the Administrative Agent makes any Letter
of Credit Funding, the Administrative Agent may withdraw funds on deposit to
make reimbursement of such Letter of Credit Funding, in an amount equal to such
Letter of Credit Funding. Upon payment by the Borrower of all Reimbursement
Obligations with respect to Letters of Credit or the termination or other
expiration of all Letters of Credit, remaining funds on deposit in the cash
collateral account shall be returned promptly to the Borrower.
SECTION 3.09. LETTER OF CREDIT FEES. (a) The Borrower agrees to pay
the Administrative Agent, for the account of the Issuing Lender and the
Participating Lenders, a non-refundable letter of credit fee of (a) with respect
to each documentary Letter of Credit, an amount equal to one-half of one percent
of the face amount under such documentary Letter of Credit payable on payment
thereof and (b) with respect to each standby Letter of Credit, an amount
computed at the Applicable Rate equal to the "Fixed Rate Margin" on the
aggregate undrawn amount under each standby Letter of Credit, calculated on the
basis of a year of 360 days for the actual number of days elapsed, payable in
arrears on the fifteenth day of each March, June, September and December,
commencing on the first such date after the Closing Date.
(b) The Borrower agrees to pay the Issuing Lender, for its own
account, its normal and customary administration, amendment, transfer, payment
and negotiation fees charged in connection with its issuance and administration
of letters of credit.
ARTICLE 4. YIELD PROTECTION; ILLEGALITY; ETC
SECTION 4.01. ADDITIONAL COSTS. (a) The Borrower or the Subsidiary
Borrower, as applicable, shall pay directly to each Lender from time to time on
demand such amounts as such Lender may determine (and reasonably
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substantiate) to be necessary to compensate it for any costs which such Lender
determines are attributable to its making or maintaining any Fixed Rate Loans
under this Agreement or its Notes or its obligation to make any such Fixed Rate
Loans hereunder, or any reduction in any amount receivable by such Lender
hereunder in respect of any such Fixed Rate Loans or such obligation (such
increases in costs and reductions in amounts receivable being herein called
"Additional Costs"), resulting from any Regulatory Change relating to any such
Fixed Rate Loans or such obligation which: (i) changes the basis of taxation of
any amounts payable to such Lender under this Agreement or its Notes in respect
of any of such Fixed Rate Loans (other than taxes imposed on the overall net
income of such Lender or of its Lending Office for any of such Fixed Rate Loans
by the jurisdiction in which such Lender has its principal office or such
Lending Office); or (ii) imposes or modifies any reserve, special deposit,
deposit insurance or assessment, minimum capital, capital ratio or similar
requirements relating to any extensions of credit or other assets of, or any
deposits with or other liabilities of, such Lender (including any of such Fixed
Rates Loans or any deposits referred to in the definition of "LIBO Base Rate"
or "NIBO Base Rate" in Section 1.01); or (iii) imposes any other condition
affecting this Agreement or its Notes (or any of such extensions of credit or
liabilities). Each Lender will notify the Borrower or the Subsidiary Borrower,
as applicable, of any event occurring after the date of this Agreement which
will entitle such Lender to compensation pursuant to this Section 4.01(a) as
promptly as practicable after it obtains knowledge thereof and determines to
request such compensation. If any Lender requests compensation from the
Borrower or the Subsidiary Borrower, as applicable, under this Section 4.01(a),
or under Section 4.01(c), the Borrower or the Subsidiary Borrower, as
applicable, may, by notice to such Lender (with a copy to the Administrative
Agent), require that such Lender's affected Fixed Rate Loans with respect to
which such compensation is requested be converted in accordance with Section
4.04. If any taxes are imposed for which the Borrower or the Subsidiary
Borrower, as applicable, would be required to make a payment under this Section
4.01, the applicable Lender shall use its best efforts to avoid or reduce such
taxes by taking any appropriate action (including, without limitation,
assigning its rights hereunder to a related entity or a different Lending
Office).
(b) Without limiting the effect of the foregoing provisions of this
Section 4.01, in the event that, by reason of any Regulatory Change, any Lender
either (i) incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits or other liabilities of
such Lender which includes deposits by reference to which the interest rate on
Fixed Rate Loans is determined as provided in this Agreement or a category of
extensions of credit or other assets of such Lender which includes Fixed Rate
Loans or (ii) becomes subject to restrictions on the amount of such a category
of liabilities or assets which it may hold, then, if such Lender so elects by
notice to the Borrower or the Subsidiary Borrower, as applicable (with a copy to
the Administrative Agent), the obligation of such Lender to make or renew Fixed
Rate Loans, and to convert Variable Rate Loans to Fixed Rate Loans hereunder
shall be suspended until the
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date such Regulatory Change ceases to be in effect (and all affected Fixed Rate
Loans held by such Lender then outstanding shall be converted in accordance
with Section 4.04).
(c) Without limiting the effect of the foregoing
provisions of this Section 4.01 (but without duplication), the Borrower or the
Subsidiary Borrower, as applicable, shall pay directly to each Lender from time
to time on request such amounts as such Lender may determine to be necessary to
compensate such Lender for any costs which it determines are attributable to the
maintenance by it or any of its affiliates pursuant to any law or regulation of
any jurisdiction or any interpretation, directive or request (whether or not
having the force of law and whether in effect on the date of this Agreement or
thereafter) of any court or governmental or monetary authority of capital in
respect of its Loans hereunder, its obligation to make Loans hereunder or its
obligation to issue, or participate in, any Letter of Credit (such compensation
to include, without limitation, an amount equal to any reduction in return on
assets or equity of such Lender to a level below that which it could have
achieved but for such law, regulation, interpretation, directive or request).
Each Lender will notify the Borrower or the Subsidiary Borrower, as applicable,
if it is entitled to compensation pursuant to this Section 4.01(c) as promptly
as practicable after it determines to request such compensation.
(d) Determinations and allocations by a Lender for
purposes of this Section 4.01 of the effect of any Regulatory Change pursuant to
subsections (a) or (b), or of the effect of capital maintained pursuant to
subsection (c), on its costs of making or maintaining Loans, its obligation to
make Loans or its obligation to issue, or participate in, any Letter of Credit,
or on amounts receivable by, or the rate of return to, it in respect of Loans or
such obligation, and of the additional amounts required to compensate such
Lender under this Section 4.01, shall be conclusive, provided that such
determinations and allocations are made on a reasonable basis.
SECTION 4.02. LIMITATION ON FIXED RATE LOANS. Anything herein to the
contrary notwithstanding, if:
(a) the Administrative Agent determines (which
determination shall be conclusive) that quotations of interest rates for the
relevant deposits referred to in the definition of "LIBO Base Rate" or "NIBO
Base Rate" in Section 1.01 are not being provided in the relevant amounts or for
the relevant maturities for purposes of determining the rate of interest for any
Fixed Rate Loans as provided in this Agreement; or
(b) the Required Lenders determine (which determination
shall be conclusive) and notify the Administrative Agent that the relevant rates
of interest referred to in the definition of "Fixed Base Rate" in Section 1.01
upon the basis of which the rate of interest for any Fixed Rate Loans is to be
determined do not
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adequately cover the cost to the Lenders of making or maintaining such Fixed
Rate Loans; or
(c) in the case of Fixed Rate Loans denominated in
Norwegian Krone, any Lender shall determine (which determination shall be
conclusive) and notify the Administrative Agent that Norwegian Krone is not
available in the relevant amounts or for the relevant period, or that a change
in national or international controls has occurred which would, in the opinion
of such Lender, make it impracticable for such Lender to make, fund or maintain
its Fixed Rate Loans to be made in Norwegian Krone or for the Subsidiary
Borrower to pay the principal of or interest on such Fixed Rate Loans as
provided in this Agreement;
then the Administrative Agent shall give the Borrower or the Subsidiary
Borrower, as applicable, and each Lender prompt notice thereof, and so long as
such condition remains in effect, the Lenders shall be under no obligation to
make or renew affected Fixed Rate Loans or to convert Variable Rate Loans into
affected Fixed Rate Loans and the Borrower or the Subsidiary Borrower, as
applicable, shall, on the last day(s) of the then current Interest Period(s)
for the outstanding affected Fixed Rate Loans, either prepay such Fixed Rate
Loans or convert such Fixed Rate Loans into Variable Rate Loans in accordance
with Section 2.05.
SECTION 4.03. ILLEGALITY. Notwithstanding any other provision in
this Agreement, in the event that it becomes unlawful for any Lender or its
Lending Office to honor its obligation to make, maintain or renew Fixed Rate
Loans hereunder or convert Variable Rate Loans into Fixed Rate Loans, then such
Lender shall promptly notify the Borrower or the Subsidiary Borrower, as
applicable, thereof (with a copy to the Administrative Agent) and such Lender's
obligation to make or renew Fixed Rate Loans and to convert other Variable Rate
Loans into Fixed Rate Loans hereunder shall be suspended until such time as
such Lender may again make, renew, or convert and maintain such Fixed Rate
Loans and such Lender's outstanding Fixed Rate Loans, as the case may be, shall
be converted in accordance with Section 4.04.
SECTION 4.04. CERTAIN CONVERSIONS PURSUANT TO SECTIONS 4.01 AND
4.03. If Fixed Rate Loans are to be converted pursuant to Section 4.01 or
4.03, such Lender's Fixed Rate Loans shall be automatically converted into
Variable Rate Loans on the last day(s) of the then current Interest Period(s)
for such Lender's Fixed Rate Loans (or, in the case of a conversion required by
Section 4.01 or 4.03, on such earlier date as such Lender may specify to the
Borrower with a copy to the Administrative Agent) and, unless and until such
Lender gives notice as provided below that the circumstances specified in
Section 4.01 or 4.03 which gave rise to such conversion no longer exist:
(a) to the extent that such Lender's Fixed Rate Loans have
been so converted, all payments and prepayments of principal which would
otherwise be
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applied to such Lender's Fixed Rate Loans shall be applied instead to its
Variable Rate Loans; and
(b) all Fixed Rate Loans which would otherwise be made or
renewed by such Lender as Fixed Rate Loans shall be made instead as Variable
Rate Loans and all Variable Rate Loans of such Lender which would otherwise be
converted into Fixed Rate Loans shall remain as Variable Rate Loans.
If such Lender gives notice to the Borrower or the Subsidiary
Borrower, as applicable (with a copy to the Administrative Agent) that the
circumstances specified in Section 4.01 or 4.03 which gave rise to the
conversion of such Lender's Fixed Rate Loans pursuant to this Section 4.04 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Fixed Rate Loans are outstanding, such
Lender's Variable Rate Loans shall be automatically converted, on the first
day(s) of the next succeeding Interest Period(s) for such outstanding Fixed
Rate Loans to the extent necessary so that, after giving effect thereto, all
Fixed Rate Loans held by the Lenders holding Fixed Rate Loans and by such
Lender are held pro rata (as to principal amounts, types, classes and Interest
Periods) in accordance with their respective Commitments.
SECTION 4.05. CERTAIN COMPENSATION. The Borrower and the
Subsidiary Borrower, as applicable, shall pay to the Administrative Agent for
the account of each Lender, upon the request of such Lender through the
Administrative Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost or
expense which such Lender determines is attributable to:
(a) any payment, prepayment, conversion or renewal of a
Fixed Rate Loan made by such Lender on a date other than the last day of an
Interest Period for such Fixed Rate Loan (whether by reason of acceleration or
otherwise); or
(b) any failure by the Borrower or the Subsidiary
Borrower, as applicable, to borrow, convert into or renew a Fixed Rate Loan to
be made, converted into or renewed by such Lender on the date specified therefor
in the relevant notice under Sections 2.04, 2.05 or 2.07, as the case may be.
Without limiting the foregoing, such compensation shall include an
amount equal to the present value of the excess, if any, of: (i) the amount of
interest which otherwise would have accrued on the principal amount so paid,
prepaid, converted or renewed or not borrowed, converted or renewed for the
period from and including the date of such payment, prepayment or conversion or
failure to borrow, convert or renew to but excluding the last day of the then
current Interest Period for such Fixed Rate Loan (or, in the case of a failure
to borrow, convert or renew, to but excluding the last day of the Interest
Period for such Fixed Rate Loan which would have commenced on the date
specified therefor in the relevant notice) at the applicable rate of interest
for such Fixed Rate Loan provided for herein; over (ii) the
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amount of interest (as reasonably determined by such Lender) such Lender would
have bid in the London interbank market (if such Loan is a Fixed Rate Loan) for
Dollar or Norwegian Krone deposits for amounts comparable to such principal
amount and maturities comparable to such period. A determination of any Lender
as to the amounts payable pursuant to this Section 4.05 shall be conclusive
absent manifest error.
SECTION 4.06. TAXES. Each of the Borrower and the Subsidiary
Borrower covenants and agrees that:
(a) All payments on account of the principal of and
interest on the Loans and the Notes, and all other amounts payable by the
Borrower or the Subsidiary Borrower hereunder, under any Note or under any other
Facility Document, including without limitation amounts payable under Section
4.06(b), shall be made without any set-off or counterclaim and free and clear of
and without reduction by reason of, all present and future income, stamp,
registration and other taxes and levies, imposts, deductions, charges,
compulsory loans and withholdings whatsoever (other than taxes imposed on the
overall net income of any Lender, or of its applicable Lending Office, by the
jurisdiction in which such Lender's principal office or its applicable Lending
Office is located), and all interest, penalties or similar amounts with respect
thereto, now or hereafter imposed, assessed, levied or collected by any country
or any political subdivision or taxing authority thereof or therein or by any
federation or association of or with which any country may be a member or
associated or by any jurisdiction from which any payment hereunder or under any
Note is made or any taxing authority thereof or therein, on or in respect of
this Agreement, the Loans, any Note, any other Facility Document, the recording,
registration, notarization or other formalization of any thereof, the
enforcement thereof or the introduction thereof in any judicial proceedings, or
on or in respect of any payments of principal, interest, premiums, charges, fees
or other amounts made on, under or in respect of any thereof (hereinafter called
"Taxes"), all of which will be paid by the Borrower or the Subsidiary Borrower,
as applicable, for its own account, prior to the date on which penalties attach
thereto;
(b) The Borrower and the Subsidiary Borrower, as
applicable, shall indemnify each Lender against, and reimburse each Lender on
demand for, any Taxes and any loss, liability, claim or expense, including
interest, penalties and reasonable legal fees (net of any refunds or tax credits
for such Taxes which such Lender shall actually receive or utilize), which such
Lender may incur at any time arising out of or in connection with any failure of
the Borrower or the Subsidiary Borrower, as applicable, to make any payments of
Taxes when due;
(c) In the event that the Borrower or the Subsidiary
Borrower is required by applicable law, decree or regulation to deduct or
withhold Taxes from any amounts payable to any Lender on, under or in respect of
this Agreement, the Loans, any Note or any other Facility Document, the Borrower
and the Subsidiary Borrower, as applicable, shall pay to such Lender such
additional amount(s) as may
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be required, after the deduction or withholding of Taxes, to enable such Lender
to receive from the Borrower or the Subsidiary Borrower, as applicable, an
amount equal to the amount stated to be payable by the Borrower or the
Subsidiary Borrower, as applicable, to such Lender under this Agreement, its
Note held by such Lender or under any other Facility Document;
(d) The Borrower and the Subsidiary Borrower, as
applicable, shall furnish to each Lender the official tax receipts in respect of
each payment of Taxes required under this Section 4.06 within 30 days after the
date such payment is due pursuant to applicable law, and the Borrower and the
Subsidiary Borrower, as applicable, shall promptly furnish to each Lender at its
request any other information, documents and receipts that such Lender may, in
its reasonable discretion from time to time, require to establish to its
satisfaction that full and timely payment has been made of all Taxes required to
be paid under this Section 4.06; and
(e) In the event that the payments by the Borrower or the
Subsidiary Borrower, as applicable, hereunder become exempt from or not subject
to Taxes, the Borrower or the Subsidiary Borrower, as applicable, will, upon the
reasonable request of any Lender, furnish to such Lender either a certificate
from each appropriate taxing authority or an opinion of counsel reasonably
acceptable to such Lender, in either case stating that payments hereunder are
exempt from or not subject to Taxes.
ARTICLE 5. CONDITIONS PRECEDENT
SECTION 5.01. DOCUMENTARY CONDITIONS PRECEDENT. The obligations of
the Lenders to make the Loans constituting the initial borrowing and of the
Issuing Lender to issue the initial Letter of Credit are subject to the
condition precedent that the Administrative Agent shall have received on or
before the Closing Date each of the following, in form and substance
satisfactory to the Administrative Agent and its counsel:
(a) counterparts of this Agreement duly executed by each
of the Borrower, the Subsidiary Borrower, the Subsidiary Guarantors, the Lenders
and the Administrative Agent;
(b) the Singh Guaranty and the Cash Collateral Account
Agreement duly executed by the Individual Guarantor;
(c) evidence that all actions necessary or appropriate
(or, in any event, as may be requested by the Administrative Agent) to create,
perfect or protect the Liens created or purported to be created by the Security
Agreement, the Intellectual Property Security Agreement and the Pledge Agreement
have been taken including, without limitation, (i) the execution of financing
statements
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(UCC-1) by the New Subsidiary Guarantor, (ii) the execution of applicable
security documents by the Subsidiary Borrower, (iii) the execution of
supplements to the Intellectual Property Security Agreement by each of the
Obligors and (iv) evidence of the pledge of all of the outstanding membership
interests of the New Subsidiary Guarantor;
(d) certificates or other evidence of casualty and
business interruption insurance policies covering all of the Property subject
to the Lien of the Administrative Agent under the Security Documents with
appropriate loss payable endorsements indicating assignment of proceeds
thereunder to the Administrative Agent and certificates or other evidence of
liability insurance with appropriate endorsements indicating the coverage of
the Administrative Agent as an additional insured, in each case containing
endorsements requiring at least 30 days prior written notice to the
Administrative Agent of noncancellation, nonrenewal or other material change
and which shall provide such other terms and conditions as the Administrative
Agent may reasonably require;
(e) a certificate of the Secretary of each of the
Obligors dated the Closing Date, attesting to all corporate or limited
liability company action taken by such Obligor, including resolutions of its
Board of Directors or Members Committee authorizing the execution, delivery and
performance of each of the Facility Documents to which it is a party and each
other document to be delivered pursuant to this Agreement;
(f) a legal opinion of Xxxxx & Xxxxxxx LLP, outside
counsel to the LCC Consolidated Entities and the Individual Guarantor, in
substantially the form of EXHIBIT C1 and as to such other matters as the
Administrative Agent may reasonably request;
(g) a legal opinion of Wikborg, Rein & Co., Norwegian
counsel to the Subsidiary Borrower, in substantially the form of EXHIBIT C2 and
as to such other matters as the Administrative Agent may reasonably request;
(h) certified complete and correct copies of the Telcom
Documents (including all exhibits, schedules and disclosure letters referred to
therein or delivered pursuant thereto and all amendments thereto, waivers
relating thereto and other side letters or agreements affecting the terms
thereof);
(i) certified complete and correct copies of the
Microcell Loan Agreement and the Microcell Note (including all exhibits,
schedules and disclosure letters referred to therein or delivered pursuant
thereto and all amendments thereto, waivers relating thereto and other side
letters or agreements affecting the terms thereof);
(j) certified complete and correct copies of each of the
financial statements referred to in Section 6.05; and
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(k) a Borrowing Base Certificate as of a date not more
than 10 days prior to the Closing Date.
SECTION 5.02. ADDITIONAL CONDITIONS PRECEDENT. The obligations of
the Lenders to make any Loans pursuant to a borrowing which increases the
amount outstanding hereunder (including the initial borrowing) or to issue any
Letters of Credit shall be subject to the further conditions precedent that on
the date of such Loans or the issuance of such Letters of Credit the following
statements shall be true: (a) the representations and warranties contained in
Article 6 and in each of the other Facility Documents are true and correct on
and as of the date of such Loans or the issuance of such Letter of Credit as
though made on and as of such date (provided that any representations and
warranties which speak to a specific date shall remain true and correct as of
such specific date); and (b) no Default or Event of Default has occurred and is
continuing, or would result from such Loans or the issuance of Letters of
Credit.
SECTION 5.03. DEEMED REPRESENTATIONS. Each notice of borrowing or
request for the issuance of a Letter of Credit hereunder and acceptance by the
Borrower or the Subsidiary Borrower, as applicable, of the proceeds of such
borrowing or the benefit of such Letter of Credit shall constitute a
representation and warranty that the statements contained in Section 5.02 are
true and correct both on the date of such notice or request and, unless the
Borrower or the Subsidiary Borrower, as applicable, otherwise notifies the
Administrative Agent prior to such borrowing or such issuance, as of the date
of such borrowing or such issuance.
ARTICLE 6. REPRESENTATIONS AND WARRANTIES
Each of the Obligors hereby represents and warrants that:
SECTION 6.01. ORGANIZATION. GOOD STANDING_AND DUE QUALIFICATION.
Each of the LCC Consolidated Entities is a corporation, partnership or limited
liability company duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, has the corporate,
partnership or limited liability company power and authority to own its assets
and to transact the business in which it is now engaged or proposed to be
engaged and is duly qualified as a foreign corporation, partnership or limited
liability company and is in good standing under the laws of each other
jurisdiction in which such qualification is required and in which such failure
to so qualify or be in good standing could not reasonably be expected to have a
Material Adverse Effect.
SECTION 6.02. POWER AND AUTHORITY: NO CONFLICTS. The execution,
delivery and performance by each of the Obligors of the Facility Documents to
which it is a party have been duly authorized by all necessary limited
liability
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company, corporate and partnership action and do not and will not: (a) require
any consent or approval of its members which has not been obtained; (b)
contravene its organizational documents; (c) violate any provision of, or
require any filing (other than the filings required pursuant to the terms of
the Security Documents), registration, consent or approval under, any law,
rule, regulation (including, without limitation, Regulation U), order, writ,
judgment, injunction, decree, determination or award presently in effect having
applicability to the Parent or any of its Subsidiaries; (d) except as otherwise
disclosed in Schedule A to the Pledge Agreement, result in a breach of or
constitute a default or require any consent under any indenture or loan or
credit agreement, or any other agreement, lease or instrument to which the
Parent or any of its Subsidiaries is a party or by which their respective
Properties may be bound or affected; (e) result in, or require, the creation or
imposition of any Lien (other than as created under the Security Documents),
upon or with respect to any of the Properties now owned or hereafter acquired
by the Parent or any of its Subsidiaries; or (f) cause the Parent or any of its
Subsidiaries to be in default under any such law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award or any such
indenture, agreement, lease or instrument.
SECTION 6.03. LEGALLY ENFORCEABLE AGREEMENTS. Each Facility
Document to which any Obligor is a party is, or when delivered under this
Agreement will be, a legal, valid and binding obligation of such Obligor
enforceable against such Obligor in accordance with its terms, except to the
extent that such enforcement may be limited by applicable bankruptcy,
insolvency and other similar laws affecting creditors' rights generally and
general principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
SECTION 6.04. LITIGATION. Except as set forth on SCHEDULE 6.04,
there are no material actions, suits or proceedings pending or, to the
knowledge of any Obligor, threatened, against or affecting any LCC Consolidated
Entity before any Governmental Authority.
SECTION 6.05. FINANCIAL STATEMENTS. (a) The consolidated
balance sheets of the Borrower and its Subsidiaries as at December 31, 1997,
1996 and 1995, and the related consolidated statements of income, cash flows and
shareholders' equity (or members' capital) of the Borrower and its Subsidiaries,
for the Fiscal Years then ended, and the accompanying footnotes, together with
the opinion on the consolidated statements of KPMG Peat Marwick, independent
certified public accountants, and the interim unaudited consolidated balance
sheet of the LCC Consolidated Entities as at September 30, 1998, and the related
statements of income and cash flow of the Borrower and its Subsidiaries, for the
nine month period then ended, copies of which have been furnished to each of the
Lenders, are complete and correct in all material respects and fairly present
the financial condition of the LCC Consolidated Entities at such dates and the
results of
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the operations of the LCC Consolidated Entities for the periods covered by such
statements, all in accordance with GAAP consistently applied.
(b) The most recent operating plan delivered to the
Lenders for the LCC Consolidated Entities for their current and subsequent
Fiscal Years, including budget, personnel, facilities, capital expenditure and
research and development projections, on an annual basis, and projected income
and cash flow statements for each such Fiscal Year, on an annual basis,
incorporating the items detailed in such operating plan for each such Fiscal
Year, and accompanied by a description of the material assumptions used in
making such operating plan, have each been prepared in good faith and are based
on reasonable estimates for the operating performance of the LCC Consolidated
Entities on and after the Closing Date.
(c) Except as set forth in the consolidated balance sheet
of the LCC Consolidated Entities as of September 30, 1998, there are no
liabilities of any LCC Consolidated Entity, fixed or contingent, which are
material but are not reflected in such financial statements or in such notes
and which would be required to be recorded in such financial statements or
notes in accordance with GAAP. No information, exhibit or report furnished by
any LCC Consolidated Entity to the Administrative Agent or any Lender in
connection with the negotiation of this Agreement or any other Facility
Document contained any material misstatement of fact or omitted to state a
material fact or any fact necessary to make the statements contained therein
not materially misleading. Since September 30, 1998, there has been no change
which could reasonably be expected to have a Material Adverse Effect.
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SECTION 6.06. OWNERSHIP AND LIENS. Each of the LCC Consolidated
Entities has title to, or valid leasehold interests in, all of its Properties
reflected in the financial statements referred to in Section 6.05 (other than
any Properties disposed of in the ordinary course of business), and none of the
Properties owned or leased by any LCC Consolidated Entity is subject to any
Lien, except as may be permitted hereunder and except for the Liens created by
the Security Documents; provided that no Obligor is making any representation
or warranty with respect to Liens affecting the fee interest in real Property
leased to any LCC Consolidated Entity and not owned by another LCC Consolidated
Entity.
SECTION 6.07. TAXES. Except as set forth on SCHEDULE 6.07 or as
otherwise permitted under Section 7.06, each of the LCC Consolidated Entities
has filed (or obtained extensions for) all tax returns (domestic, foreign,
federal, state and local) required to be filed and has paid or provided
adequate reserves for all taxes, assessments and governmental charges and
levies shown thereon to be due, including interest and penalties. The charges,
accruals and reserves on the books of the LCC Consolidated Entities in respect
of taxes, assessments and other governmental charges are adequate.
SECTION 6.08. ERISA. Each Domestic Plan, Foreign Plan and, to the
best knowledge of each Obligor, Multiemployer Plan, is in compliance in all
material respects with, and has been administered in all material respects in
compliance with, the applicable provisions of ERISA, the Code and any other
applicable domestic, foreign, federal, state or local law, and no event or
condition is occurring or exists concerning which any LCC Consolidated Entity
would be under an obligation to furnish a report to the Lenders in accordance
with Section 7.08(j). Each of the LCC Consolidated Entities and the ERISA
Affiliates has fulfilled its obligations under the minimum funding standards of
ERISA, the Code and any other applicable domestic, foreign, federal, state or
local law.
SECTION 6.09. SUBSIDIARIES AND AFFILIATES. As of the Closing
Date, SCHEDULE 6.09 sets forth the name of (a) each Subsidiary of each LCC
Consolidated Entity, in each case showing (i) the jurisdiction of organization
of each such Subsidiary and (ii) percentage of such LCC Consolidated Entity's
ownership in such Subsidiary and (b) each Affiliate of each LCC Consolidated
Entity, in each case showing (i) the percentage of such Affiliate's ownership
interest in such LCC Consolidated Entity, (ii) the percentage of such LCC
Consolidated Entity's ownership interest in such Affiliate, and (iii) the
percentage of the common controlling person's interest in such LCC Consolidated
Entity and such Affiliate. All of the outstanding shares of Capital Stock of
each LCC Consolidated Entity are validly issued, fully paid and nonassessable.
Except as set forth on SCHEDULE 6.09, no LCC Consolidated Entity owns or holds
the right to acquire any shares of stock or any other security or interest in
any other Person.
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SECTION 6.10. CREDIT ARRANGEMENTS. As of the Closing Date,
SCHEDULE 6.10 is a complete and correct list of all credit agreements,
indentures, purchase agreements, Guaranties, Capital Leases in excess of
$50,000 and other investments, agreements and arrangements presently in effect
providing for or relating to extensions of credit (including agreements and
arrangements for the issuance of letters of credit or for acceptance financing)
in respect of which any LCC Consolidated Entity is in any manner directly or
contingently obligated; and the maximum principal or face amounts of the credit
in question, outstanding and which can be outstanding, are correctly stated,
and all Liens of any nature given or agreed to be given as security therefor
are correctly described or indicated in such Schedule (except that Liens
permitted under Section 8.03 are described as of September 30, 1996).
SECTION 6.11. MATERIAL CONTRACTS. SCHEDULE 6.11 contains a
complete and correct list of all Material Contracts between any LCC
Consolidated Entity and another Person or other Persons. Each of the LCC
Consolidated Entities and, to the knowledge of the Borrower, each other party
thereto have in all material respects performed all the obligations required to
be performed by them to date, have received no notice of default and are not in
default under any Material Contract now in effect to which any LCC Consolidated
Entity is a party or by which it or its Property may be bound. Except as set
forth on SCHEDULE 6.11, each of the Material Contracts is in full force and
effect with no default, anticipated or threatened default or failure of
performance or observance of any obligations or conditions contained therein,
and none of the foregoing parties nor any LCC Consolidated Entity has provided
any notice of default or of its intention to terminate any Material Contract.
SECTION 6.12. PROPRIETARY RIGHTS. As of the Closing Date, SCHEDULE 6.12
contains a complete and accurate list of (a) all patents, registered and
unregistered trademarks, registered service marks, and registered copyrights
owned or filed by any LCC Consolidated Entity (other than the Subsidiary
Borrower) and (b) all licenses and other rights granted by any third party to
any LCC Consolidated Entity (other than the Subsidiary Borrower) with respect to
any Proprietary Rights used in the conduct of its business (excluding shrink
wrap licenses held by any LCC Consolidated Entity with respect to software for
internal use), the unavailability of which could reasonably be expected to have
a Material Adverse Effect. Except for licenses granted to customers and
distributors in the ordinary course of business and except as set forth on
SCHEDULE 6.12, no LCC Consolidated Entity (other than the Subsidiary Borrower)
has granted licenses or other rights to any third party with respect to any
Proprietary Rights. Each of the LCC Consolidated Entities owns or has sufficient
right to use pursuant to a valid and enforceable license all Proprietary Rights
necessary for the conduct of its business without infringing the rights of
others except for such infringements as could not reasonably be expected to have
a Material Adverse Effect. No loss or expiration of any Proprietary Right, the
loss or expiration of which could reasonably
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be expected to have a Material Adverse Effect, is pending or, to the knowledge
of each Obligor, threatened. Each of the LCC Consolidated Entities has taken
reasonable and appropriate steps to protect and preserve the confidentiality of
its trade secrets and confidential information as outlined on SCHEDULE 6.12.
Except as set forth on SCHEDULE 6.12, (i) no LCC Consolidated Entity has
received notice from any Person asserting the invalidity, misuse or
unenforceability of any Proprietary Rights owned or used by any LCC Consolidated
Entity and to the best knowledge of each Obligor, no such claims are threatened
and there are no grounds for the same, (ii) within the last five years, no LCC
Consolidated Entity has received a notice of nor is aware of any facts which in
any LCC Consolidated Entity's reasonable judgment indicate a reasonable
likelihood of any conflict with the asserted Proprietary Rights of others, (iii)
to the best knowledge of each Obligor, the conduct of each LCC Consolidated
Entity's business has not infringed or misappropriated and does not infringe or
misappropriate any Proprietary Rights of other Persons, nor would any future
conduct as presently proposed infringe any Proprietary Rights of other Persons,
and the Proprietary Rights owned by any LCC Consolidated Entity are not
currently being infringed or misappropriated by other Persons, except in each
case for such infringements as could not reasonably be expected to have a
Material Adverse Effect.
SECTION 6.13. HAZARDOUS MATERIALS. Each of the LCC Consolidated
Entities is in compliance with all Environmental Laws in effect in each
jurisdiction where it is presently doing business. No LCC Consolidated Entity
is subject to any liability under any Environmental Law.
In addition, no LCC Consolidated Entity has received any (i) notice
from any Governmental Authority by which any of its present or previously-owned
or leased real Properties has been designated, listed, or identified in any
manner by any Governmental Authority charged with administering or enforcing
any Environmental Law as a Hazardous Material disposal or removal site, "Super
Fund" clean-up site, or candidate for removal or closure pursuant to any
Environmental Law, (ii) notice of any Lien arising under or in connection with
any Environmental Law that has attached to any revenues of, or to, any of its
owned or leased real Properties, or (iii) summons, citation, notice, directive,
letter, or other written or oral communication from any Governmental Authority
concerning any intentional or unintentional action or omission by such LCC
Consolidated Entity in connection with its ownership or leasing of any real
Property resulting in the releasing, spilling, leaking, pumping, pouring,
emitting, emptying, dumping, or otherwise disposing of any Hazardous Material
into the environment resulting in any violation of any Environmental Law.
SECTION 6.14. NO DEFAULT ON OUTSTANDING JUDGMENTS OR ORDERS. As
of the Closing Date, each of the LCC Consolidated Entities has satisfied all
judgments and no LCC Consolidated Entity is in default with respect to any
final
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judgment, writ, injunction, decree, rule or regulation of any Governmental
Authority.
SECTION 6.15. NO DEFAULTS ON OTHER AGREEMENTS. Except for the MCI
Note Purchase Documents and the Telcom Documents, no LCC Consolidated Entity is
a party to any indenture, loan or credit agreement or any lease or other
agreement or instrument or subject to any corporate, partnership or limited
liability company restriction which could have a Material Adverse Effect. No
LCC Consolidated Entity is in default in any respect in the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained in any agreement or instrument material to its business to which it
is a party.
SECTION 6.16. LABOR DISPUTES AND ACTS OF GOD. Neither the
Business nor the Properties of any LCC Consolidated Entity are affected by any
fire, explosion, accident, strike, lockout or other labor dispute, drought,
storm, hail, earthquake, embargo, act of God or of the public enemy or other
casualty (whether or not covered by insurance), which could have a Material
Adverse Effect.
SECTION 6.17. GOVERNMENTAL REGULATION. Neither any LCC
Consolidated Entity nor any Affiliate is subject to regulation under the Public
Utility Holding Company Act of 1935, the Investment Company Act of 1940, the
Interstate Commerce Act, the Federal Power Act or any statute or regulation
limiting its ability to incur indebtedness for money borrowed as contemplated
hereby.
SECTION 6.18. NO FORFEITURE. Neither any LCC Consolidated Entity
nor any Affiliate is engaged in or proposes to be engaged in the conduct of any
business or activity which could result in a Forfeiture Proceeding and no
Forfeiture Proceeding against any of them is pending or threatened.
SECTION 6.19. SOLVENCY. The present fair saleable value of the
assets of each of the Borrower and the Subsidiary Borrower after giving effect
to all the transactions contemplated by the Facility Documents and the funding
of the Commitments and the issuance of the Letters of Credit hereunder exceeds
the amount that will be required to be paid on or in respect of the existing
Debts and other liabilities (including contingent liabilities but excluding the
MCI Subordinated Notes) of each of the Borrower and the Subsidiary Borrower as
they mature. The Property of each of the Borrower and the Subsidiary Borrower
does not constitute unreasonably small capital for each of the Borrower and the
Subsidiary Borrower to carry out its business as now conducted and as proposed
to be conducted including the capital needs of each of the Borrower and the
Subsidiary Borrower. Neither the Borrower nor the Subsidiary Borrower intends
to, nor does either the Borrower or the Subsidiary Borrower believe that it
will, incur Debts beyond its ability to pay such Debts as they mature (taking
into account the timing
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and amounts of cash to be received by each of the Borrower and the Subsidiary
Borrower, and of amounts to be payable on or in respect of Debt of each of the
Borrower and the Subsidiary Borrower). The cash available to each of the
Borrower and the Subsidiary Borrower after taking into account all other
anticipated uses of the cash of each of the Borrower and the Subsidiary
Borrower, is anticipated to be sufficient to pay all such amounts on or in
respect of Debt of the Borrower when such amounts are required to be paid.
Neither the Borrower nor the Subsidiary Borrower believes that final judgments
against it in actions for money damages will be rendered at a time when, or in
an amount such that, either the Borrower or the Subsidiary Borrower will be
unable to satisfy any such judgments promptly in accordance with their terms
(taking into account the maximum reasonable amount of such judgments in any
such actions and the earliest reasonable time at which such judgments might be
rendered). The cash available to the each of the Borrower and the Subsidiary
Borrower after taking into account all other anticipated uses of the cash of
each of the Borrower and the Subsidiary Borrower, is anticipated to be
sufficient to pay all such judgments promptly in accordance with their terms.
SECTION 6.20. SUBORDINATED NOTE DOCUMENTS. (a) Each of the
Lenders and the Administrative Agent has received a complete and correct copy
of the MCI Note Purchase Documents (including all exhibits, schedules and
disclosure letters referred to therein or delivered pursuant thereto) and all
amendments thereto, waivers relating thereto and other side letters or
agreements affecting the terms thereof. Each of the MCI Note Purchase
Documents to which it is a party has been duly executed and delivered by Old
LCC and the Parent and, to the best knowledge of the Borrower, MCI and is in
full force and effect. Each of the representations and warranties of Old LCC
and the Parent set forth in each of the MCI Note Purchase Documents is true and
correct in all material respects as of the Closing Date. Each of the MCI Note
Purchase Documents to which it is a party is a legal, valid and binding
obligation of the Borrower and the Parent and, to the best knowledge of the
Borrower, MCI enforceable against the Borrower and the Parent, and, to the best
knowledge of the Borrower, MCI in accordance with its terms, except to the
extent that such enforcement may be limited by applicable bankruptcy,
insolvency and other similar laws affecting creditors' rights generally. Each
of the MCI Note Purchase Agreement and the MCI Subordinated Guaranty has been
terminated and no party thereto has any further rights or obligations
thereunder.
(b) Each of the Lenders and the Administrative Agent has
received a complete and correct copy of the Telcom Documents (including all
exhibits, schedules and disclosure letters referred to therein or delivered
pursuant thereto) and all amendments thereto, waivers relating thereto and
other side letters or agreements affecting the terms thereof. Each of the
Telcom Documents to which it is a party has been duly executed and delivered by
the Borrower and the Parent and is in full force and effect. Each of the
Telcom Documents to which it is a party is a legal, valid and binding
obligation of the Borrower and the Parent enforceable
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against the Borrower and the Parent in accordance with its terms, except to the
extent that such enforcement may be limited by applicable bankruptcy,
insolvency and other similar laws affecting creditors' rights generally.
SECTION 6.21. SECURITY DOCUMENTS. The Security Documents are
effective to create in favor of the Administrative Agent for the benefit of the
Lenders a legal, valid and enforceable Lien on and security interest in all
right, title and interest of each Obligor in the Collateral securing the
Obligations. Except for Liens permitted under Section 8.03 entitled to
priority by law, the Administrative Agent has a fully perfected and continuing
first priority Lien on and security interest in the Collateral, free from all
Liens other than Liens permitted under Section 8.03.
SECTION 6.22. SENIOR DEBT. The obligations of the Borrower
hereunder and under the other Facility Documents constitute "Senior Debt" under
and as defined in the Subordination Agreement and in the MCI Subordinated Notes
with respect to the MCI Subordinated Notes. The obligations of the Borrower
hereunder and under the other Facility Documents constitute "Senior
Obligations" under and as defined in the Telcom Subordination Agreement and in
the Telcom Subordinated Note with respect to the Telcom Subordinated Note.
ARTICLE 7. AFFIRMATIVE COVENANTS
So long any Obligation shall remain unpaid, any Letter of Credit shall
remain outstanding or any Lender shall have any Commitment, the Borrower shall,
and shall cause each of its Subsidiaries to:
SECTION 7.01. MAINTENANCE OF EXISTENCE. Preserve and maintain its
corporate, partnership or limited liability company existence and good standing
in the jurisdiction of its organization and qualify and remain qualified as a
foreign corporation, partnership or limited liability company in each
jurisdiction in which such qualification is required, except with respect to
(a) sales or other dispositions permitted under Section 8.08 and (b) mergers
and consolidations permitted under Section 8.10.
SECTION 7.02. CONDUCT OF BUSINESS. Continue to primarily engage
in the Business.
SECTION 7.03. MAINTENANCE OF PROPERTIES. Maintain, keep and
preserve all of its Properties (including, without limitation, its Proprietary
Rights) necessary or useful in the proper conduct of the Business in good
working order and condition, ordinary wear and tear excepted.
SECTION 7.04. MAINTENANCE OF RECORDS. Keep adequate records and
books of account, in which complete entries will be made in accordance with
GAAP,
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reflecting all financial transactions of such LCC Consolidated Entity; provided
that, with respect to each of the Foreign Subsidiaries, such entries may be
made in accordance with generally accepted accounting principles in effect in
its jurisdiction of organization until such time that such entries are
consolidated with the entries of the Borrower and its Domestic Subsidiaries.
SECTION 7.05. MAINTENANCE OF INSURANCE. Maintain insurance with
financially sound and reputable insurance companies or associations rated "A"
or better by A.M. Best Company, Inc. in such amounts and including such
coverages (including, without limitation, casualty, workers compensation,
liability and business interruption insurance) as are acceptable to an
insurance broker of national reputation selected by the Borrower and reasonably
acceptable to the Required Lenders and, in any event, as are usually carried by
companies engaged in the same or a similar business and similarly situated,
which insurance shall name the Administrative Agent as loss payee or additional
insured, as its interest may appear, and shall contain a clause requiring the
insurer to give not less than 30 days' notice to the Administrative Agent in
the event of cancellation of the policy for any reason whatsoever.
SECTION 7.06. COMPLIANCE WITH LAWS. Comply in all material
respects with all applicable laws, rules, regulations and orders (including,
without limitation, any Environmental Law), such compliance to include, without
limitation, paying before the same become delinquent all taxes, assessments and
governmental charges imposed upon it or upon its Property; provided, however,
that no delinquency with respect to the payment of any tax, assessment or
governmental charge shall represent a violation of this Section 7.06 so long as
(a) the obligation of any LCC Consolidated Entity to pay such tax, assessment
or other governmental charge is being contested in good faith by appropriate
proceedings and (b) adequate reserves in the good faith and reasonable judgment
of the Borrower have been established with respect thereto.
SECTION 7.07. RIGHT OF INSPECTION. At any reasonable time and
from time to time, permit the Administrative Agent or any Lender or any agent
or representative thereof, to examine and make copies and abstracts from the
records and books of account of, and visit the Properties of, such LCC
Consolidated Entity, and to discuss the affairs, finances and accounts of such
LCC Consolidated Entity with its officers and directors and independent
accountants.
SECTION 7.08. REPORTING REQUIREMENTS. Furnish directly to each of
the Lenders:
(a) as soon as available and in any event within 120 days
after the end of each Fiscal Year, consolidated (and unaudited for Microcell
and the Subsidiary Borrower) balance sheets of the LCC Consolidated Entities as
of the end of such Fiscal Year and consolidated (and unaudited by product line
and for each
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LCC Consolidated Entity) statements of income, consolidated statements of cash
flows and consolidated statements of shareholders' equity of the LCC
Consolidated Entities for such Fiscal Year, all in reasonable detail and
stating in comparative form the respective figures for the corresponding date
and period in the prior Fiscal Year and all prepared in accordance with GAAP
and accompanied by an opinion on the consolidated statements acceptable to the
Lenders by KPMG Peat Marwick or other independent accountants of national
standing selected by the LCC Consolidated Entities;
(b) as soon as available and in any event within 45 days
after the end of the first three Fiscal Quarters and, in the case of the
unaudited consolidated statements of income, within 30 days after the end of
each calendar month, unaudited consolidated (and for Microcell and the
Subsidiary Borrower) balance sheets of the LCC Consolidated Entities as of the
end of such Fiscal Quarter and unaudited consolidated statements of income (and
by product line and for each LCC Consolidated Entity), unaudited consolidated
statements of cash flows and unaudited consolidated statements of shareholders'
equity of the LCC Consolidated Entities for the period commencing at the end of
the previous Fiscal Year and ending with the end of such Fiscal Quarter or, in
the case of the unaudited consolidated statements of income for each calendar
month, for such calendar month, all in reasonable detail and stating in
comparative form the respective figures for the corresponding date and period
in the previous Fiscal Year and all prepared in accordance with GAAP and
certified by the president or the chief financial officer of the LCC
Consolidated Entities (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial
statements referred to above, a Compliance Certificate of the president or
chief financial officer of the Borrower (i) certifying that to the best of his
knowledge no Default or Event of Default has occurred and is continuing or, if
a Default or Event of Default has occurred and is continuing, a statement as to
the nature thereof and the action which is proposed to be taken with respect
thereto and (ii) with computations demonstrating compliance with the covenants
contained in Article 9;
(d) simultaneously with the delivery of the annual
financial statements referred to in Section 7.08(a), a certificate of the
independent public accountants who audited such statements (i) certifying to
the effect that, in making the examination necessary for the audit of such
statements, they have obtained no knowledge of any condition or event which
constitutes a Default or Event of Default, or if such accountants shall have
obtained knowledge of any such condition or event, specifying in such
certificate each such condition or event of which they have knowledge and the
nature and status thereof and (ii) with computations demonstrating compliance
with the covenants contained in Article 9;
(e) as soon as available and in any event within 30 days
after the end of each calendar month, (i) a Borrowing Base Certificate, (ii) a
listing of Receivable balances not paid within 90 days of the due date,
specifying each
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Customer thereunder by name and the aged balance of all Receivables due from
such Customer and (iii) a listing of all Customers from which 50% or more of
the aggregate amount of Receivables have not paid within 90 days of the due
date, specifying the names of such Customers and the total amount of
Receivables of such Customers;
(f) simultaneously with the delivery of the financial
statements referred to in Section 7.08(a) and Section 7.08(b), a narrative
explanation signed by the president or the chief financial officer of the
Borrower of any material variance from the LCC Consolidated Entities' budget
for the Fiscal Year that is reflected in such financial statements;
(g) not later than the 30th day following the
commencement of each Fiscal Year, (i) a projected consolidated balance sheet of
the LCC Consolidated Entities for such Fiscal Year and the next four Fiscal
Years on an annual basis and (ii) an operating plan for the LCC Consolidated
Entities for such Fiscal Year and the next four Fiscal Years, including budget,
personnel, facilities, capital expenditure and research and development
projections on an annual basis and a projected consolidated income and cash
flows statement for such Fiscal Years on an annual basis, incorporating the
items detailed in such operating plan for such Fiscal Years, and accompanied by
a description of the material assumptions used in making such operating plan;
(h) promptly after the commencement thereof, notice of
all material actions, suits, and proceedings before any Governmental Authority
against or affecting any LCC Consolidated Entity or any of their respective
Properties;
(i) as soon as possible and in any event within 10 days
after any LCC Consolidated Entity knows or has reason to know of the occurrence
of each Default or Event of Default a written notice setting forth the details
of such Default or Event of Default and the action which is proposed to be
taken by the LCC Consolidated Entities with respect thereto;
(j) as soon as possible, and in any event within 10 days
after any LCC Consolidated Entity knows or has reason to know that any of the
events or conditions specified below with respect to any Domestic Plan, Foreign
Plan or Multiemployer Plan has occurred or exists, a statement signed by a
senior financial officer of such LCC Consolidated Entity setting forth details
respecting such event or condition and the action, if any, which such LCC
Consolidated Entity or an ERISA Affiliate proposes to take with respect thereto
(and a copy of any report or notice required to be filed with or given to the
PBGC or any other Governmental Authority by such LCC Consolidated Entity or an
ERISA Affiliate with respect to such event or condition): (i) any reportable
event, as defined in Section 4043(b) of ERISA, with respect to a Domestic Plan,
as to which the PBGC has not by regulation waived the requirement of Section
4043(a) of ERISA that it be notified within 30 days of the occurrence of such
event (provided that a failure to meet the
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minimum funding standard of Section 412 of the Code or Section 302 of ERISA
including, without limitation, the failure to make on or before its due date a
required installment under Section 412(m) of the Code or Section 302(e) of
ERISA, shall be a reportable event regardless of the issuance of any waivers in
accordance with Section 412(d) of the Code) and any request for a waiver under
Section 412(d) of the Code for any Domestic Plan; (ii) the distribution under
Section 4041 of ERISA or under any similar foreign law of a notice of intent to
terminate any Domestic Plan or Foreign Plan or any action taken by such LCC
Consolidated Entity or an ERISA Affiliate to terminate any Domestic Plan or
Foreign Plan; (iii) the institution by the PBGC or any other Governmental
Authority of proceedings under Section 4042 of ERISA or under any similar
foreign law for the termination of, or the appointment of a trustee to
administer, any Domestic Plan or any Foreign Plan, or the receipt by such LCC
Consolidated Entity or any ERISA Affiliate of a notice from a Multiemployer
Plan that such action has been taken by the PBGC with respect to such
Multiemployer Plan; (iv) the complete or partial withdrawal from a
Multiemployer Plan by such LCC Consolidated Entity or any ERISA Affiliate that
results in liability under Section 4201 or 4204 of ERISA (including the
obligation to satisfy secondary liability as a result of a purchaser default)
or the receipt by such LCC Consolidated Entity or any ERISA Affiliate of notice
from a Multiemployer Plan that it is in reorganization or insolvency pursuant
to Section 4241 or 4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA; (v) the institution of a proceeding by
a fiduciary or any Multiemployer Plan against such LCC Consolidated Entity or
any ERISA Affiliate to enforce Section 515 of ERISA, which proceeding is not
dismissed within 30 days; (vi) the adoption of an amendment to any Domestic
Plan that pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA
would result in the loss of tax-exempt status of the trust of which such
Domestic Plan is a part if such LCC Consolidated Entity or an ERISA Affiliate
fails to timely provide security to the Domestic Plan in accordance with the
provisions of said Sections; (vii) any event or circumstance exists which may
reasonably be expected to constitute grounds for such LCC Consolidated Entity
or any ERISA Affiliate to incur liability under Title IV of ERISA or under
Section 412(c)(11) or 412(n) of the Code with respect to any Domestic Plan; and
(viii) the Unfunded Benefit Liabilities of one or more Domestic Plans and
Foreign Plans increase after the date of this Agreement in an amount which is
material in relation to the financial condition of the Consolidated Entities;
provided, however, that such increase shall not be deemed to be material so
long as it does not exceed during any consecutive 3 year period $500,000;
(k) promptly after the request of any Lender, copies of
each annual report filed pursuant to Section 104 of ERISA with respect to each
Domestic Plan (including, to the extent required by Section 104 of ERISA, the
related financial and actuarial statements and opinions and other supporting
statements, certifications, schedules and information referred to in Section
103) and each annual report filed with respect to each Domestic Plan under
Section 4065 of ERISA; provided, however, that in the case of a Multiemployer
Plan, such annual reports shall be
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furnished only if they are available to such LCC Consolidated Entity or an
ERISA Affiliate;
(l) promptly after the sending or filing thereof, copies
of all proxy statements, financial statements and reports which any LCC
Consolidated Entity sends to its holders of Capital Stock, and copies of all
regular, periodic and special reports, and all registration statements which
such LCC Consolidated Entity files with the Securities and Exchange Commission
or any Governmental Authority which may be substituted therefor, or with any
national securities exchange;
(m) promptly after becoming aware of the existence of any
violation or alleged violation of any Environmental Law by any LCC Consolidated
Entity and with respect to any real Property owned or leased by any LCC
Consolidated Entity, prompt written notice of and a description of the nature
of such violation or alleged violation, what action such LCC Consolidated
Entity is taking or proposes to take with respect thereto and, when known, any
action taken, or proposed to be taken, by any Governmental Authority with
respect thereto;
(n) simultaneously with the delivery of the financial
statements referred to in Section 7.08(a) and Section 7.08(b), a report
describing any unscheduled termination, material amendment or material default
under any Material Revenue-Producing Contract (whether or not constituting a
Material Contract Termination), and the entering into of any new Material
Revenue-Producing Contract;
(o) at least once a Fiscal Year, a report of a reputable
insurance broker with respect to all insurance maintained by the LCC
Consolidated Entities together with a certificate of insurance evidencing the
effectiveness of the policies of insurance required to be maintained pursuant
the provisions of Section 7.05;
(p) simultaneously with the delivery of the financial
statements referred to in Section 7.08(a) and Section 7.08(b), a report, with
respect to each LCC Consolidated Entity, as to any new location or relocation
of inventory or equipment, any new interests in real Property acquired, any new
interests in Proprietary Rights obtained and any new equity interests acquired,
together with such financing statements, mortgages, assignments and stock
certificates as may be necessary to perfect the Lien of the Administrative
Agent under the Security Documents;
(q) promptly after the commencement thereof or promptly
after any LCC Consolidated Entity knows of the commencement or threat thereof,
notice of any Forfeiture Proceeding;
(r) damage to all or any part of the Property of any LCC
Consolidated Entity by casualty or damage or taking of all or any part of any
LCC Consolidated Entity by condemnation that would cause business interruption
or
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would cause monetary loss in excess of $500,000 not otherwise covered by
insurance; and
(s) such other information respecting the condition or
operations, financial or otherwise, of any LCC Consolidated Entity as the
Administrative Agent or any Lender may from time to time reasonably request.
SECTION 7.09. ADDITIONAL GUARANTORS. Promptly upon any Person(s)
becoming a Significant Subsidiary, cause such Significant Subsidiary to become
a "Subsidiary Guarantor" and thereby an "Obligor" hereunder pursuant to the
Assumption Agreement and deliver such proof of corporate, partnership or
limited liability company action, incumbency of officers, opinions of counsel
and other documents as is consistent with those delivered by the Obligors
pursuant to Article 5 or as the Administrative Agent shall have reasonably
requested.
SECTION 7.10. AFTER ACQUIRED REAL PROPERTY. Promptly upon
acquiring any material interest in any real Property or, in the case of
telecommunications towers acquired or constructed by the New Subsidiary
Guarantor, at the request of the Administrative Agent, cause each Obligor to
(a) immediately provide written notice thereof to the Administrative Agent,
setting forth with specificity a description of the interest acquired, the
location of such real Property, any structures or improvements thereon and the
fair market value of such real Property; (b) as soon as practicable thereafter,
execute and deliver to the Administrative Agent a mortgage or trust deed in a
form reasonably acceptable to the Administrative Agent, together with such of
the other documents and instruments as the Administrative Agent shall have
reasonably requested; (c) deliver a mortgagee policy of title insurance for
such real Property in an amount no less the fair market value of such real
Property; and (d) deliver such proof of corporate, partnership or limited
liability company action, incumbency of officers, opinions of counsel and other
documents as the Administrative Agent shall have reasonably requested.
ARTICLE 8. NEGATIVE COVENANTS
So long as any Obligation shall remain unpaid, any Letter of Credit
shall remain outstanding or any Lender shall have any Commitment, the Borrower
shall not, and shall cause each of its Subsidiaries not to:
SECTION 8.01. DEBT. Create, incur, assume or suffer to exist any
Debt, except:
(a) Debt of the LCC Consolidated Entities under this
Agreement, the Notes, the Letters of Credit, the Interest Rate Protection
Agreements, the Currency Protection Agreements and the other Facility
Documents;
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(b) Debt described on SCHEDULE 6.10 but no renewals,
extensions or refinancings thereof;
(c) Debt consisting of Guaranties permitted pursuant to
Section 8.02;
(d) Consolidated Subordinated Debt;
(e) Debt under documentary and standby letters of credit
exclusive of the Letters of Credit so long as the aggregate reimbursement
obligations under such letters of credit together with the aggregate
reimbursement obligations of all outstanding letters of credit described on
SCHEDULE 6.10 does not exceed at any time $750,000;
(f) Debt of (i) any Obligor (other than the Subsidiary
Borrower) to any other Obligor (other than the Subsidiary Borrower), (ii) the
Borrower to any of its Subsidiaries so long as such Debt is subordinated to the
Obligations on terms and conditions acceptable to the Required Lenders and
(iii) in addition to the Debt permitted under clauses (i) and (ii) of this
paragraph (f), any Subsidiary of the Borrower to the Borrower so long as (A)
such Debt is evidenced by a promissory note on terms reasonably acceptable to
the Required Lenders which promissory note shall be pledged to the
Administrative Agent as collateral for the Obligations and (B) the aggregate
principal amount of all such Debt does not exceed at any time $1,000,000;
(g) accounts payable to trade creditors for goods or
services which are not aged more than 120 days from billing date and current
operating liabilities (other than for borrowed money) which are not more than
120 days past due, in each case incurred in the ordinary course of business and
paid within the specified time, unless contested in good faith and by
appropriate proceedings; and
(h) Debt of any LCC Consolidated Entity secured by
Purchase Money Liens permitted by Section 8.03(j) and any renewals, extensions
or refinancings thereof so long as the aggregate principal amount of all such
Debt together with all Debt then outstanding secured by Purchase Money Liens
described on SCHEDULE 6.10 does not exceed at any time $1,000,000.
SECTION 8.02. GUARANTIES. Assume, guarantee, endorse or otherwise
become directly or contingently responsible or liable for any Guaranty, except:
(a) Guaranties by the Subsidiaries of the Borrower of the
Obligations;
(b) Guaranties by the Borrower of the Debt of other
Persons so long as the aggregate amount of such Debt does not exceed at any
time $1,000,000; and
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(c) Guaranties by endorsement of negotiable instruments
for deposit or collection or similar transactions in the ordinary course of
business.
SECTION 8.03. LIENS. Create, incur, assume or suffer to exist any
Lien, upon or with respect to any of its Properties, now owned or hereafter
acquired, except:
(a) Liens in favor of the Administrative Agent on behalf
of the Lenders securing the Obligations under this Agreement, the Notes, the
Letters of Credit, the Interest Rate Protection Agreements, the Currency
Protection Agreements and the other Facility Documents;
(b) Liens for taxes or assessments or other government
charges or levies if not yet due and payable or if due and payable if they are
being contested in good faith by appropriate proceedings and for which
appropriate reserves are maintained;
(c) Liens imposed by law, such as mechanic's,
materialmen's, landlord's, warehousemen's and carrier's Liens, and other
similar Liens, securing obligations incurred in the ordinary course of business
which are not past due for more than 60 days, or which are being contested in
good faith by appropriate proceedings and for which appropriate reserves have
been established;
(d) Liens under workmen's compensation, unemployment
insurance, social security or similar legislation (other than ERISA);
(e) Liens, deposits or pledges to secure the performance
of bids, tenders, contracts (other than contracts for the payment of money),
leases (permitted under the terms of this Agreement), public or statutory
obligations, surety, stay, appeal, indemnity, performance or other similar
bonds, or other similar obligations arising in the ordinary course of business;
(f) judgment and other similar Liens arising in
connection with court proceedings that do not exceed $500,000 in the aggregate;
provided that the execution or other enforcement of such Liens is effectively
stayed and the claims secured thereby are being actively contested in good
faith and by appropriate proceedings;
(g) easements, rights-of-way, restrictions and other
similar encumbrances which, in the aggregate, do not materially interfere with
the occupation, use and enjoyment by any LCC Consolidated Entity of the
Property encumbered thereby in the normal course of its business or materially
impair the value of the Property subject thereto;
(h) Liens described on SCHEDULE 6.10 provided that such
Liens shall secure only those obligations which they secure on the date hereof;
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(i) Liens on Domestic Cash Equivalents securing the
reimbursement obligations of any LCC Consolidated Entity under letters of
credit permitted under Section 8.01(e); and
(j) Purchase Money Liens; provided that (i) the Person
owning any Property subject to such Lien is acquired or any Property subject to
such Lien is acquired or constructed by any LCC Consolidated Entity and the
Lien on any such Property is created within 120 days of such acquisition or
construction; (ii) the obligation secured by any Lien so created, assumed or
existing shall not exceed 100% of the lesser of cost or fair market value as of
the time of acquisition or construction of the Property covered thereby to such
LCC Consolidated Entity acquiring or constructing the same; (iii) each such
Lien shall attach, in the case of an acquisition, only to the Property so
acquired, Property associated with such Property, fixed improvements thereon
and the proceeds thereof and, in the case of construction, only to the Property
so constructed, Property associated with such Property, the land thereunder,
the fixed improvements attached thereto and the proceeds thereof; and (iv) the
obligations secured by such Lien are permitted by the provisions of Section
8.01(h) and the related expenditure is permitted under Section 8.13.
SECTION 8.04. LEASES. Create, incur, assume or suffer to exist
any obligation as lessee for the rental or hire of any Property, except:
(a) leases existing on the date of this Agreement and any
extensions or renewals thereof;
(b) ground leases entered into in connection with the
acquisition, construction or other operation of cell sites, base stations or
telecommunications towers utilized in the operation of wireless networks;
(c) Capital Leases permitted by Section 8.01, Section
8.03 and Section 8.13; and
(d) other leases, provided that Consolidated Rentals
during any Fiscal Year shall not exceed $7,500,000.
SECTION 8.05. SALE AND LEASEBACK. Sell, transfer or otherwise
dispose of any real or personal Property to any Person and thereafter directly
or indirectly lease back the same or similar Property.
SECTION 8.06. INVESTMENT. Make any Investment, except:
(a) in Domestic Cash Equivalents and Foreign Cash
Equivalents;
(b) in Property to be used or useful in the ordinary
course of business of such LCC Consolidated Entity;
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(c) in stock, obligations or securities received in
settlement of trade debts (created in the ordinary course of business and not,
in any event, in excess of $500,000) owing to such LCC Consolidated Entity;
(d) to or in any Obligor (other than the Subsidiary
Borrower) or in any corporation, limited partnership or limited liability
business entity that concurrently with such Investment is or becomes an Obligor
(other than the Subsidiary Borrower); provided that at least $15,000,000 of all
amounts invested in Microcell shall be under the Microcell Note;
(e) in loans or advances by the Borrower to the Parent
made prior to the date hereof to assist the Parent in paying certain taxes due
in connection with the assumption of the MCI Subordinated Telcom Note by the
Borrower so long as (i) the aggregate amount of such loans or advances does not
exceed $3,500,000 at any time and (ii) such loans and advances are evidenced by
a promissory note on terms reasonably acceptable to the Required Lenders and
which promissory note shall be pledged to the Administrative Agent as
collateral for the Obligations; and
(f) in loans incurred in the ordinary course of business
or advances to employees which in the aggregate do not exceed $750,000 at any
time.
SECTION 8.07. RESTRICTED PAYMENTS. Make any Restricted Payment,
except:
(a) the declaration and payment of cash dividends by a
Subsidiary of the Borrower on its Capital Stock to the Borrower or to a
Wholly-Owned Subsidiary of the Borrower;
(b) so long as no Default or Event of Default shall have
occurred and be continuing, or would result from any of the following payments,
payments by the Borrower of accrued interest on the MCI Subordinated Notes on
and not prior to the respective due dates thereof; and
(c) so long as no Default or Event of Default shall have
occurred and be continuing, or would result from any of the following payments,
repurchases of Capital Stock of Microcell from the holders thereof so long as
the aggregate amount of payments made in connection with all such repurchases
does not exceed $2,000,000.
SECTION 8.08. SALE OF ASSETS. Sell, lease, assign, transfer or
otherwise dispose of any of its now owned or hereafter acquired Property
(including, without limitation, shares of stock and indebtedness, receivables
and leasehold interests); except:
(a) for inventory disposed of in the ordinary course of
business;
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(b) leases of cell sites to wireless network operators in
the ordinary course of business;
(c) for Proprietary Rights licensed in the ordinary
course of business;
(d) the sale or other disposition of Property no longer
used or useful in the conduct of its business;
(e) the sale or other disposition of Property during each
Fiscal Year so long as the aggregate consideration for such disposition and all
other dispositions made during such Fiscal Year does not exceed $500,000; and
(e) any LCC Consolidated Entity may effect a merger,
consolidation or transfer of substantially all of its Property permitted by
Section 8.10.
SECTION 8.09. TRANSACTIONS WITH AFFILIATES. (a) Make any
Investment in an Affiliate except as otherwise permitted under Section 8.06;
(b) transfer, sell, lease, assign or otherwise dispose of any Property to any
Affiliate; (c) merge into or consolidate with or purchase or acquire Property
from any Affiliate except as otherwise permitted under Section 8.10; or (d)
enter into any other transaction directly or indirectly with or for the benefit
of any Affiliate (including, without limitation, Guaranties and assumption of
obligations of any Affiliate); provided that (x) any Affiliate who is an
individual may serve as a director, member of a membership committee, officer
or employee of any LCC Consolidated Entity and receive reasonable compensation
for his or her services in such capacity and (y) any LCC Consolidated Entity
may enter into transactions (other than Investments by such LCC Consolidated
Entity in any Affiliate not permitted under Section 8.06) in the ordinary
course of business if the monetary or business consideration arising therefrom
would be substantially as advantageous to such LCC Consolidated Entity as the
monetary or business consideration which would obtain in a comparable arm's
length transaction with a Person not an Affiliate.
SECTION 8.10. MERGERS. Merge or consolidate with, or sell,
assign, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its Property (whether now
owned or hereafter acquired) to, any Person, or acquire all or substantially
all of the Property or the business of any Person (or enter into any agreement
to do any of the foregoing), except that:
(a) any Wholly-Owned Subsidiary of the Borrower may merge
into or consolidate with or transfer substantially all of its Property to the
Borrower or any other Wholly-Owned Subsidiary of the Borrower; and
(b) any LCC Consolidated Entity may effect any
Acquisition permitted by Section 8.11.
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SECTION 8.11. ACQUISITIONS. Engage in or propose to be engaged in
the conduct of any business or activity which could result in a Forfeiture
Proceeding.
SECTION 8.12. NO ACTIVITIES LEADING TO FORFEITURE. Make any
Acquisition.
SECTION 8.13. CAPITAL EXPENDITURES. Make or commit to make any
Capital Expenditure if the aggregate amount of Consolidated Capital
Expenditures incurred during any Fiscal Year would exceed $4,000,000.
SECTION 8.14. AMENDMENTS OR WAIVERS OF CERTAIN DOCUMENTS. Amend,
supplement, otherwise change, waive or otherwise relinquish (or agree to any
amendment, supplement, other change, waiver or other relinquishment of) any
term of (a) any terms of Consolidated Subordinated Debt (including, without
limitation, any MCI Note Purchase Document and any Telcom Document) or (b) if
such amendment, supplement, change, waiver or relinquishment could have an
adverse effect on the rights or interests of the Lenders hereunder or under any
of the other Facility Documents, any terms of any NextWave Investment Document,
any DCR Investment Document, the Merger Agreement or the organizational
documents of any Subsidiary Guarantor without, in each case, obtaining the
prior written consent of the Required Lenders to such amendment, supplement,
change, waiver or relinquishment.
SECTION 8.15. RESTRICTIONS. Enter into or suffer to exist, any
agreement with any Person other than the Lenders that (a) prohibits, requires
the consent of such Person for or limits the ability of (i) any LCC
Consolidated Entity to pay dividends or make distributions to any other LCC
Consolidated Entity, pay liabilities owed to any other LCC Consolidated Entity,
make loans or advances to any other LCC Consolidated Entity or transfer any of
its Property to any other LCC Consolidated Entity, (ii) any LCC Consolidated
Entity to create, incur, assume or suffer to exist any Lien upon any of its
Property or (iii) any Obligor to enter into any modification or supplement of
any Facility Document; or (b) contains financial covenants which, taken as a
whole, are more restrictive on the LCC Consolidated Entities than the financial
covenants contained in Article 9.
ARTICLE 9. FINANCIAL COVENANTS.
So long as any Obligation shall remain unpaid, any Letter of Credit
shall remain outstanding or any Lender shall have any Commitment and as
determined as of the end of each Fiscal Quarter:
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SECTION 9.01. INTEREST COVERAGE RATIO. Commencing with, and
including, the calendar month ending April 30, 1999, the LCC Consolidated
Entities shall maintain at all times an Interest Coverage Ratio of not less
than 1.50 to 1.00.
SECTION 9.02. MINIMUM NET WORTH. The LCC Consolidated Entities
shall maintain at all times Consolidated Net Worth of not less than the sum of
(a) $50,000,000 plus (b) the aggregate sum of the Fiscal Quarter Net Worth
Increase Amounts calculated for each Fiscal Quarter ending after the date
hereof.
SECTION 9.03. CURRENT RATIO. The LCC Consolidated Entities shall
maintain at all times a Current Ratio of not less than 1.25 to 1.00.
SECTION 9.04. BALANCE SHEET LEVERAGE RATIO. The LCC Consolidated
Entities shall maintain at all times a Balance Sheet Leverage Ratio of not
greater than 1.00 to 1.00.
SECTION 9.05. CONSOLIDATED EBIT. Commencing with, and including,
the Fiscal Quarter ending on March 31, 1999, the LCC Consolidated Entities
shall maintain Consolidated EBIT of greater than (a) in the case of the Fiscal
Quarter ending on March 31, 1999, <$2,500,000> and (b) $0 for each Fiscal
Quarter ending thereafter.
ARTICLE 10. EVENTS OF DEFAULT.
SECTION 10.01. EVENTS OF DEFAULT. Any of the following events
shall be an "Event of Default":
(a) the Borrower or the Subsidiary Borrower shall: (i)
fail to pay the principal of any Note or any Reimbursement Obligation on or
before the date when due and payable; or (ii) fail to pay interest on any Note
or any fee or other amount due hereunder on or before the date when due and
payable; or the amount of cash deposited with the Administrative Agent under
the Cash Collateral Account Agreement shall be less than the aggregate amount
of the then outstanding Guarantied Obligations;
(b) any representation or warranty made or deemed made by
any LCC Consolidated Entity or the Individual Guarantor in this Agreement or in
any other Facility Document or which is contained in any certificate, document,
opinion, financial or other statement furnished at any time under or in
connection with any Facility Document shall prove to have been incorrect in any
material respect on or as of the date made or deemed made;
(c) any LCC Consolidated Entity or the Individual
Guarantor shall: (i) fail to perform or observe any term, covenant or agreement
contained in
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SECTION 2.03 or 3.02 or Article 8 or 9; or (ii) fail to perform or observe any
term, covenant or agreement on its part to be performed or observed (other than
the obligations specifically referred to elsewhere in this Section 10.01) in
any Facility Document and such failure shall continue for 30 consecutive days
after any Obligor shall have obtained actual knowledge or notice from the
Administrative Agent or any Lender thereof;
(d) any LCC Consolidated Entity shall: (i) fail to pay
any indebtedness in excess of $500,000, including but not limited to
indebtedness for borrowed money (other than the payment obligations described
in (a) above), of such LCC Consolidated Entity, or any interest or premium
thereon, when due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise); (ii) fail to perform or observe any term,
covenant or condition on its part to be performed or observed under any
agreement or instrument relating to any such indebtedness, when required to be
performed or observed (taking into account applicable grace periods), if the
effect of such failure to perform or observe is to accelerate, or to permit the
acceleration of, after the giving of notice or passage of time, or both, the
maturity of such indebtedness; or any such indebtedness shall be declared to be
due and payable, or required to be prepaid (other than by a regularly scheduled
required prepayment), prior to the stated maturity thereof; or (iii) a
"Default" or "Event of Default" shall have occurred under any MCI Note Purchase
Document or any Telcom Document, whether or not waived;
(e) any LCC Consolidated Entity or the Individual
Guarantor: (i) shall generally not, or be unable to, or shall admit in writing
its inability to, pay its debts as such debts become due; or (ii) shall make an
assignment for the benefit of creditors, petition or apply to any tribunal for
the appointment of a custodian, receiver or trustee for it or a substantial
part of its assets; or (iii) shall commence any proceeding under any
bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, whether now or hereafter in
effect; or (iv) shall have had any such petition or application filed or any
such proceeding shall have been commenced, against it, in which an adjudication
or appointment is made or order for relief is entered, or which petition,
application or proceeding remains undismissed for a period of 60 days or more;
or shall be the subject of any proceeding under which its assets may be subject
to seizure, forfeiture or divestiture (other than a proceeding in respect of a
Lien permitted under Section 8.03(b)); or (v) by any act or omission shall
indicate its consent to, approval of or acquiescence in any such petition,
application or proceeding or order for relief or the appointment of a
custodian, receiver or trustee for all or any substantial part of its Property;
or (vi) shall suffer any such custodianship, receivership or trusteeship to
continue undischarged for a period of 60 days or more;
(f) one or more judgments, decrees or orders for the
payment of money in excess of $500,000 in the aggregate shall be rendered
against any LCC Consolidated Entity and such judgments, decrees or orders shall
continue
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unsatisfied and in effect for a period of 30 consecutive days without being
vacated, discharged, satisfied or stayed or bonded pending appeal;
(g) any event or condition shall occur or exist with
respect to any Domestic Plan, Foreign Plan or Multiemployer Plan concerning
which any LCC Consolidated Entity is under an obligation to furnish a report to
the Lenders in accordance with Section 7.08(i) hereof and as a result of such
event or condition, together with all other such events or conditions, such LCC
Consolidated Entity or any ERISA Affiliate has incurred or in the opinion of
the Lenders is reasonably likely to incur a liability to a Domestic Plan, a
Foreign Plan, a Multiemployer Plan, the PBGC, a Section 4042 Trustee or any
other Governmental Authority (or any combination of the foregoing) which is
material in relation to the financial position of the LCC Consolidated
Entities; provided, however, that any such amount shall not be deemed to be
material so long as all such amounts do not exceed $500,000 in the aggregate
during the term of this Agreement;
(h) the Unfunded Benefit Liabilities of one or more
Domestic Plans or Foreign Plans have increased after the date of this Agreement
in an amount which is material (as specified in Section 7.08(i)(viii) hereof);
(i) (i) any Person or two or more Persons acting in
concert (other than Xx. Xxxxxxxx Xxxxx, Xxxxx Xxxxx, any trusts for their
benefit or the benefit of their family members and any of their respective
affiliates controlled by them) shall have acquired beneficial ownership (within
the meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of more than 25% of the Voting Stock of the
Borrower; or (ii) during any period of 12 consecutive months, commencing before
or after the date of this Agreement, individuals who at the beginning of such
12-month period were directors or members of the Members Committee (or persons
nominated by such individuals) of the Borrower cease for any reason to
constitute a majority of the Board of Directors or the Members Committee of the
Borrower;
(j) any Forfeiture Proceeding shall have been commenced
or the Borrower shall have given the Administrative Agent or any Lender written
notice of the commencement of any Forfeiture Proceeding as provided in Section
6.08(o);
(k) (i) any Security Document shall for any reason cease
to create in favor of the Administrative Agent a legal, valid and enforceable
perfected first-priority Lien in the Collateral as security for the Obligations
except for Liens permitted under Section 8.03 entitled to priority by law; or
(ii) any Facility Document shall cease to be in full force and effect or shall
be declared null and void, or the validity or enforceability thereof shall be
contested by any LCC Consolidated Entity or the Individual Guarantor or any
such Person shall deny it has any further liability or obligation under the
Security Documents or any such Person shall fail to perform any of its
obligations thereunder;
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(l) damage to all or any part of the Property of any LCC
Consolidated Entity by casualty or damage or taking of all or any part of the
Property of such LCC Consolidated Entity that would cause business interruption
or would cause monetary loss in excess of $500,000 not otherwise covered by
insurance; or
(m) the occurrence of a Material Contract Termination.
SECTION 10.02. REMEDIES. If any Event of Default shall occur and be
continuing, the Administrative Agent shall, upon request of the Required
Lenders, by notice to the Borrower and the Subsidiary Borrower, (a) declare the
Commitments to be terminated, whereupon the same shall forthwith terminate and
so shall the obligations of the Issuing Lender to issue any Letter of Credit,
(b) declare the outstanding principal of the Notes, all interest thereon and
all other amounts payable under this Agreement, the Notes and the other
Facility Documents to be forthwith due and payable, whereupon the Notes, all
such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by the Borrower and the Subsidiary
Borrower and/or (c) direct the Borrower to pay to the Administrative Agent an
amount to be held as cash security in the cash collateral account held by the
Administrative Agent under Section 3.08 equal to the Letter of Credit
Obligations then outstanding; provided that, in the case of an Event of Default
referred to in Section 10.01(e) or Section 10.01(i) above, the Commitments
shall be immediately terminated, and the Notes, all interest thereon and all
other amounts payable under this Agreement shall be immediately due and payable
without notice, presentment, demand, protest or other formalities of any kind,
all of which are hereby expressly waived by the Borrower and the Subsidiary
Borrower. If an Event of Default shall occur and be continuing, the
Administrative Agent and each Lender may exercise all of the rights and
remedies conferred in this Agreement and in each of the other Facility
Documents; it being expressly understood that no such remedy is intended to be
exclusive of any other remedy or remedies; but each and every remedy shall be
cumulative and shall be in addition to every other remedy given in this
Agreement or the other Facility Documents or now or hereafter existing at law
or in equity or by statute, and may be exercised from time to time as often as
may be deemed expedient by the Administrative Agent and such Lender.
ARTICLE 11. UNCONDITIONAL GUARANTY.
SECTION 11.01. GUARANTIED OBLIGATIONS. Each of the Borrower (as to
the Swingline Notes) and the Subsidiary Guarantors (each of the foregoing
entities individually a "Guarantor" and collectively the "Guarantors"), jointly
and severally, in consideration of the execution and delivery of this Agreement
by the Lenders and the Administrative Agent, hereby irrevocably and
unconditionally guarantees to the
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Administrative Agent, for the benefit of the Lenders, as and for such
Guarantor's own debt, until final payment has been made:
(a) the due and punctual payment in full in cash in the
applicable currency of the Obligations, in each case when and as the same shall
become due and payable, whether at maturity, pursuant to mandatory or optional
prepayment, by acceleration or otherwise, all in accordance with the terms and
provisions of this Agreement and the other Facility Documents, it being the
intent of the Guarantors that the guaranty set forth in this Section 11.01 (the
"Unconditional Guaranty") shall be a guaranty of payment and not a guaranty of
collection; and
(b) the punctual and faithful performance, keeping,
observance, and fulfillment by each Obligor of all duties, agreements,
covenants and obligations such Obligor contained in each of the Facility
Documents to which it is a party.
Notwithstanding anything to the contrary contained herein, the
obligations of Microcell under this Agreement and the other Facility Documents
are limited to the principal, interest and other amounts outstanding under the
Microcell Note and the Microcell Loan Agreement. In furtherance of the
foregoing, all rights granted to the Administrative Agent under Section 3.05 of
the Pledge Agreement upon an Event of Default with respect to the Microcell
Note and the Microcell Loan Agreement shall be granted to the Administrative
Agent effective as of the Closing Date.
SECTION 11.02. PERFORMANCE UNDER THIS AGREEMENT. In the event any
Obligor fails to make, on or before the due date thereof, any payment of the
principal of, or interest on, the Notes, the Letter of Credit Obligations or
the other Obligations, or if any Obligor shall fail to perform, keep, observe,
or fulfill any other obligation referred to in clause (a) or clause (b) of
Section 11.01 hereof in the manner provided in the Notes, the Letters of Credit
or in any of the other Facility Documents, and any such failure shall remain
uncured at the expiration of any applicable cure period provided herein or in
the other Facility Documents, the Guarantors shall cause forthwith to be paid
the moneys, or to be performed, kept, observed, or fulfilled each of such
obligations, in respect of which such failure has occurred.
SECTION 11.03. WAIVERS. To the fullest extent permitted by law,
each Guarantor does hereby waive:
(a) notice of acceptance of the Unconditional Guaranty;
(b) notice of any borrowings under this Agreement, or the
creation, existence or acquisition of any of the Obligations, subject to such
Guarantor's right to make inquiry of the Administrative Agent to ascertain the
amount of the Obligations at any reasonable time;
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(c) notice of the amount of the Obligations, subject to
each Guarantor's right to make inquiry of the Administrative Agent to ascertain
the amount of the Obligations at any reasonable time;
(d) notice of adverse change in the financial condition
of the Borrower, the Subsidiary Borrower, any other guarantor or any other fact
that might increase each Guarantor's risk hereunder;
(e) notice of presentment for payment, demand, protest,
and notice thereof as to the Notes or any other Facility Document;
(f) notice of any Default or Event of Default;
(g) all other notices and demands to which each Guarantor
might otherwise be entitled (except if such notice or demand is specifically
otherwise required to be given to each Guarantor hereunder or under the other
Facility Documents);
(h) the right by statute or otherwise to require any or
each Lender or the Administrative Agent to institute suit against the Borrower,
the Subsidiary Borrower or any other guarantor or to exhaust the rights and
remedies of any or each Lender or the Administrative Agent against the
Borrower, the Subsidiary Borrower or any other guarantor, each Guarantor being
bound to the payment of each and all Obligations, whether now existing or
hereafter accruing, as fully as if such Obligations were directly owing to each
Lender by each Guarantor;
(i) any defense arising by reason of any disability or
other defense (other than the defense that the Obligations shall have been
fully and finally performed and indefeasibly paid) of the Borrower or the
Subsidiary Borrower or by reason of the cessation from any cause whatsoever of
the liability of the Borrower or the Subsidiary Borrower in respect thereof;
and
(j) any stay (except in connection with a pending
appeal), valuation, appraisal, redemption or extension law now or at any time
hereafter in force which, but for this waiver, might be applicable to any sale
of Property of each Guarantor made under any judgment, order or decree based on
this Agreement, and each Guarantor covenants that it will not at any time
insist upon or plead, or in any manner claim or take the benefit or advantage
of such law.
Until all of the Obligations shall have been paid in full, each of the
Guarantors hereby agrees to completely subordinate any right of subrogation,
reimbursement, or indemnity whatsoever in respect thereof and any right of
recourse to or with respect to any Property of the Borrower or the Subsidiary
Borrower. Nothing shall discharge or satisfy the obligations of any Guarantor
hereunder except the full and final performance and indefeasible payment in
cash in the applicable currency of the Obligations by such Guarantor, upon
which each Lender agrees to transfer and assign its interest in the Notes and
the other Facility Documents to such Guarantor
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without recourse, representation or warranty of any kind (other than that such
Lender owns its Notes and that such Notes are free of Liens created by such
Lender). All of the Obligations shall in the manner and subject to the
limitations provided herein for the acceleration thereof forthwith become due
and payable without notice.
SECTION 11.04. RELEASES. Each of the Guarantors consents and
agrees that, without notice to or by such Guarantor and without affecting or
impairing the obligations of such Guarantor hereunder, each Lender or the
Administrative Agent, in the manner provided herein, by action or inaction,
may:
(a) compromise or settle, extend the period of duration
or the time for the payment, or discharge the performance of, or may refuse to,
or otherwise not, enforce, or may, by action or inaction, release all or any
one or more parties to, any one or more of the Notes or the other Facility
Documents;
(b) grant other indulgences to the Borrower or the
Subsidiary Borrower in respect thereof;
(c) amend or modify in any manner and at any time (or
from time to time) any one or more of the Notes, the Letters of Credit and the
other Facility Documents in accordance with Section 13.01 or otherwise;
(d) release or substitute any one or more of the
endorsers or guarantors of the Obligations whether parties hereto or not; and
(e) exchange, enforce, waive, or release, by action or
inaction, any security for the Obligations (including, without limitation, any
of the collateral therefor) or any other guaranty of any of the Obligations.
SECTION 11.05. MARSHALING. Each of the Guarantors consents and
agrees that:
(a) neither the Administrative Agent nor any Lender shall
be under no obligation to marshal any assets in favor of each Guarantor or
against or in payment of any or all of the Obligations; and
(b) to the extent the Borrower, the Subsidiary Borrower
or any other guarantor makes a payment or payments to any Lender, which payment
or payments or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside, or required, for any of the foregoing
reasons or for any other reason, to be repaid or paid over to a custodian,
trustee, receiver, or any other party under any bankruptcy law, common law, or
equitable cause, then to the extent of such payment or repayment, the
Obligations or part thereof intended to be satisfied thereby shall be revived
and continued in full force and effect as if
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said payment or payments had not been made and such Guarantor shall remain
liable for such Obligation.
SECTION 11.06. LIABILITY. Each of the Guarantors agrees that the
liability of such Guarantor in respect of this Article 11 shall not be
contingent upon the exercise or enforcement by any Lender or the Administrative
Agent of whatever remedies such Lender or the Administrative Agent may have
against the Borrower, the Subsidiary Borrower or any other guarantor or the
enforcement of any Lien or realization upon any security such Lender or the
Administrative Agent may at any time possess.
SECTION 11.07. UNCONDITIONAL OBLIGATION. The Unconditional
Guaranty set forth in this Article 11 is an absolute, unconditional, continuing
and irrevocable guaranty of payment and performance and shall remain in full
force and effect until the full and final payment of the Obligations without
respect to future changes in conditions, including change of law or any
invalidity or irregularity with respect to the issuance or assumption of any
obligations (including, without limitation, the Notes and the Letter of Credit
Obligations) of or by the Borrower, the Subsidiary Borrower or any other
guarantor, or with respect to the execution and delivery of any agreement
(including, without limitation, the Notes and the other Facility Documents) of
the Borrower, the Subsidiary Borrower or any other guarantor.
SECTION 11.08. ELECTION TO PERFORM OBLIGATIONS. Any election by
any of the Guarantors to pay or otherwise perform any of the obligations of any
Obligor under the Notes or under any of the other Facility Documents, whether
pursuant to this Article 11 or otherwise, shall not release such Obligor from
any of its other obligations under the Notes, the Letters of Credit or any of
the other Facility Documents.
SECTION 11.09. NO ELECTION. The Administrative Agent shall have the
right to seek recourse against any one or more of the Guarantors to the
fullest extent provided for herein for such Guarantor's obligations under
this Agreement (including, without limitation, this Article 11) in respect of
the Notes, the Letters of Credit and the other Facility Documents. No
election to proceed in one form of action or proceeding, or against any
party, or on any obligation, shall constitute a waiver of the Administrative
Agent's right to proceed in any other form of action or proceeding or against
other parties unless the Administrative Agent has expressly waived such right
in writing. Specifically, but without limiting the generality of the
foregoing, no action or proceeding by any Lender or the Administrative Agent
against any Obligor under any document or instrument evidencing obligations
of such Obligor to such Lender or the Administrative Agent shall serve to
diminish the liability of any of the Guarantors under this Agreement
(including, without limitation, this Article 11) except to the extent that
the Administrative Agent or such Lender finally and unconditionally shall
have realized payment by such action
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or proceeding, notwithstanding the effect of any such action or proceeding upon
such Guarantor's right of subrogation against any Obligor.
SECTION 11.10. SEVERABILITY. Subject to applicable law, each of the
rights and remedies granted under this Article 11 to the Administrative Agent
may be exercised by the Administrative Agent without notice by the
Administrative Agent to, or the consent of or any other action by, any Lender,
provided that the Administrative Agent will promptly thereafter give each
Lender notice of any exercise of rights and remedies by the Administrative
Agent under this Article 11.
SECTION 11.11. OTHER ENFORCEMENT RIGHTS. The Administrative Agent
may proceed, as provided in Article 11 hereof, to protect and enforce the
Unconditional Guaranty by suit or suits or proceedings in equity, at law or in
bankruptcy, and whether for the specific performance of any covenant or
agreement contained herein (including, without limitation, in this Article 11)
or in execution or aid of any power herein granted; or for the recovery of
judgment for the obligations hereby guarantied or for the enforcement of any
other proper, legal or equitable remedy available under applicable law. Each
of the Lenders shall have, to the fullest extent permitted by law and this
Agreement, a right of set-off against, any and all credits and any and all
other Property of any Guarantor, now or at any time whatsoever with, or in the
possession of, such Lender, or anyone acting for such Lender, as security for
any and all obligations of such Guarantor hereunder and such Lien shall be
deemed permitted for all purposes under Article 8 hereof.
SECTION 11.12. DELAY OR OMISSION: NO WAIVER. No course of dealing
on the part of any Lender or the Administrative Agent and no delay or failure
on the part of any such Person to exercise any right hereunder (including,
without limitation, this Article 11) shall impair such right or operate as a
waiver of such right or otherwise prejudice such Person's rights, powers and
remedies hereunder. Every right and remedy given by the Unconditional Guaranty
or by law to any Lender or the Administrative Agent may be exercised from time
to time as often as may be deemed expedient by such Person.
SECTION 11.13. RESTORATION OF RIGHTS AND REMEDIES. If any Lender
or the Administrative Agent shall have instituted any proceeding to enforce any
right or remedy under the Unconditional Guaranty, under any Note held by such
Lender, or under any Security Document, and such proceeding shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to such Lender or the Administrative Agent, then and in every such
case each such Lender, the Administrative Agent, the Borrower, the Subsidiary
Borrower and the Guarantors shall, except as may be limited or affected by any
determination in such proceeding, be restored severally and respectively to its
respective former positions hereunder and thereunder, and thereafter, subject
as aforesaid, the rights and remedies of such Lender or the Administrative
Agent shall continue as though no such proceeding had been instituted.
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SECTION 11.14. CUMULATIVE REMEDIES. No remedy under this Agreement
(including, without limitation, this Article 11), the Notes, the Letters of
Credit or any of the other Facility Documents is intended to be exclusive of
any other remedy, but each and every remedy shall be cumulative and in addition
to any and every other remedy given under this Agreement (including, without
limitation, this Article 11), the Notes, the Letters of Credit or any of the
other Facility Documents.
SECTION 11.15. SURVIVAL. The obligations of the Guarantors under
this Article 11 shall survive the transfer and payment of any Obligation
until the indefeasible payment in full of all the Obligations and the
expiration and termination of the Letters of Credit and the Commitments.
SECTION 11.16. NO SETOFF. COUNTERCLAIM OR WITHHOLDING: GROSS-UP.
Each payment by a Guarantor shall be made without setoff or counterclaim and
without withholding for or on account of any present or future taxes imposed by
any Governmental Authority. If any such withholding is so required, such
Guarantor shall make the withholding and pay the amount withheld to the
appropriate Governmental Authority before penalties attach thereto or interest
accrues thereon.
SECTION 11.17. PAYMENT IN APPLICABLE CURRENCY. Any payment of an
Obligation required to be made pursuant to this Agreement shall be made in the
currency in which such Obligation is required to be made pursuant to this
Agreement, any Note or any other Facility Document.
ARTICLE 12. THE ADMINISTRATIVE AGENT
SECTION 12.01. APPOINTMENT. POWERS AND IMMUNITIES OF ADMINISTRATIVE
AGENT. Each Lender hereby irrevocably (but subject to removal by the Required
Lenders pursuant to Section 12.09) appoints and authorizes the Administrative
Agent to act as its agent hereunder and under any other Facility Document with
such powers as are specifically delegated to the Administrative Agent by the
terms of this Agreement and any other Facility Document, together with such
other powers as are reasonably incidental thereto. The Administrative Agent
shall have no duties or responsibilities except those expressly set forth in
this Agreement and any other Facility Document, and shall not by reason of this
Agreement be a trustee for any Lender. The Administrative Agent shall not be
responsible to the Lenders for any recitals, statements, representations or
warranties made by any LCC Consolidated Entity or any of their respective
officers and officials or by any other Person contained in this Agreement or
any other Facility Document, or in any certificate or other document or
instrument referred to or provided for in, or received by any of them under,
this Agreement or any other Facility Document, or for the value, legality,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Facility Document or
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any other document or instrument referred to or provided for herein or therein,
for the perfection or priority of any collateral security for the Obligations
or for any failure by any Obligor to perform any of their respective
obligations hereunder or thereunder. The Administrative Agent may employ
agents and attorneys-in-fact and shall not be responsible, except as to money
or securities received by it or its authorized agents, for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. Neither the Administrative Agent nor any of its directors,
officers, employees or agents shall be liable or responsible to any Lender for
any action taken or omitted to be taken by it or them hereunder or under any
other Facility Document or in connection herewith or therewith, except for its
or their own gross negligence or willful misconduct.
SECTION 12.02. RELIANCE BY ADMINISTRATIVE AGENT. The
Administrative Agent shall be entitled to rely upon any certification, notice
or other communication (including any thereof by telephone, telex, telegram or
cable) believed by it to be genuine and correct and to have been signed or sent
by or on behalf of the proper Person or Persons, and upon advice and statements
of legal counsel, independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat each Lender
as the holder of the Obligations attributable to it for all purposes hereof
unless and until a notice of the assignment or transfer thereof satisfactory to
the Administrative Agent signed by such Lender shall have been furnished to the
Administrative Agent but the Administrative Agent shall not be required to deal
with any Person who has acquired a participation in any Obligation from a
Lender. As to any matters not expressly provided for by this Agreement or any
other Facility Document, the Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder in accordance with
instructions signed by the Required Lenders, and such instructions of the
Required Lenders and any action taken or failure to act pursuant thereto shall
be binding on all of the Lenders and any other holder of all or any portion of
any Obligation.
SECTION 12.03. DEFAULTS. The Administrative Agent shall not be
deemed to have knowledge of the occurrence of a Default or Event of Default
(other than the non-payment of principal of or interest on the Loans and the
Letter of Credit Obligations to the extent the same is required to be paid to
the Administrative Agent for the account of the Lenders) unless the
Administrative Agent has received notice from a Lender or the Borrower
specifying such Default or Event of Default and stating that such notice is a
"Notice of Default." In the event that the Administrative Agent receives such
a notice of the occurrence of a Default or Event of Default, the Administrative
Agent shall give prompt notice thereof to the Lenders (and shall give each
Lender prompt notice of each such non-payment). The Administrative Agent shall
(subject to Section 12.08) take such action with respect to such Default or
Event of Default which is continuing as shall be directed by the Required
Lenders; provided that, unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may take such action, or
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refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interest of the Lenders; and
provided further that the Administrative Agent shall not be required to take
any such action which it determines to be contrary to law.
SECTION 12.04. RIGHTS OF ADMINISTRATIVE AGENT AS A LENDER. With
respect to its Commitments and the Obligations held by it, The Chase
Manhattan Bank in its capacity as a Lender hereunder shall have the same
rights and powers hereunder as any other Lender and may exercise the same as
though it were not acting as the Administrative Agent, and the term "Lender"
or "Lenders" shall, unless the context otherwise indicates, include The Chase
Manhattan Bank in its capacity as a Lender. The Chase Manhattan Bank and its
affiliates may (without having to account therefor to any Lender) accept
deposits from, lend money to (on a secured or unsecured basis), and generally
engage in any kind of banking, trust or other business with, any LCC
Consolidated Entity (and any of its their respective affiliates) as if it
were not acting as the Administrative Agent, and The Chase Manhattan Bank may
accept fees and other consideration from any LCC Consolidated Entity and any
of their respective affiliates for services in connection with this Agreement
or otherwise without having to account for the same to the Lenders. Although
The Chase Manhattan Bank and its affiliates may in the course of such
relationships and relationships with other Persons acquire information about
any LCC Consolidated Entity, their respective affiliates and such other
Persons, the Administrative Agent shall have no duty to disclose such
information to the Lenders.
SECTION 12.05. INDEMNIFICATION OF ADMINISTRATIVE AGENT. The Lenders
agree to indemnify the Administrative Agent (to the extent not reimbursed under
Section 13.03 or under the applicable provisions of any other Facility
Document, but without limiting the obligations of any Obligor under Section
13.03 or such provisions), ratably in accordance with the aggregate unpaid
principal amount of the Obligations attributable to the Lenders (without giving
effect to any participations, in all or any portion of the Obligations, sold by
them to any other Person) (or, if no Obligations are at the time outstanding,
ratably in accordance with their respective Commitments), for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever which
may be imposed on, incurred by or asserted against the Administrative Agent in
any way relating to or arising out of this Agreement, any other Facility
Document or any other documents contemplated by or referred to herein or the
transactions contemplated hereby or thereby (including, without limitation, the
costs and expenses which the Obligors are obligated to pay under Section 13.03
or under the applicable provisions of any other Facility Document but
excluding, unless a Default or Event of Default has occurred, normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof or thereof or
of any such other documents or instruments; provided that no Lender shall be
liable for any of
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the foregoing to the extent they arise from the gross negligence or wilful
misconduct of the party to be indemnified.
SECTION 12.06. DOCUMENTS. The Administrative Agent will forward to
each Lender, promptly after the Administrative Agent's receipt thereof, a
copy of each report, notice or other document required by this Agreement or
any other Facility Document to be delivered to the Administrative Agent for
such Lender.
SECTION 12.07. NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER
LENDERS. Each Lender agrees that it has, independently and without reliance
on the Administrative Agent or any other Lender, and based on such documents
and information as it has deemed appropriate, made its own credit analysis of
the LCC Consolidated Entities and decision to enter into this Agreement and
that it will, independently and without reliance upon the Administrative Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own analysis and decisions
in taking or not taking action under this Agreement or any other Facility
Document. The Administrative Agent shall not be required to keep itself
informed as to the performance or observance by the Obligors of this Agreement
or any other Facility Document or any other document referred to or provided
for herein or therein or to inspect the Properties or books of any LCC
Consolidated Entity. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition or business of any LCC
Consolidated Entity (or any of their respective affiliates) which may come into
the possession of the Administrative Agent or any of its affiliates. The
Administrative Agent shall not be required to file this Agreement, any other
Facility Document or any document or instrument referred to herein or therein,
for record or give notice of this Agreement, any other Facility Document or any
document or instrument referred to herein or therein, to anyone.
SECTION 12.08. FAILURE OF ADMINISTRATIVE AGENT TO ACT. Except for
action expressly required of the Administrative Agent hereunder, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder unless it shall have received further assurances
(which may include cash collateral) of the indemnification obligations of the
Lenders under Section 12.05 in respect of any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any
such action.
SECTION 12.09. RESIGNATION OR REMOVAL OF ADMINISTRATIVE AGENT.
Subject to the appointment and acceptance of a successor Administrative Agent
as provided below, the Administrative Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, and the
Administrative Agent may be removed at any time with or without cause by the
Required Lenders; provided
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that the Borrower and the other Lenders shall be promptly notified thereof.
Upon any such resignation or removal, the Required Lenders shall have the right
to appoint a successor Administrative Agent. If no successor Administrative
Agent shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative
Agent's giving of notice of resignation or the Required Lenders' removal of the
retiring Administrative Agent, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent, which shall be
a bank which has an office in New York, New York. The Required Lenders or the
retiring Administrative Agent, as the case may be, shall upon the appointment
of a successor Administrative Agent promptly so notify the Borrower and the
other Lenders. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent, the provisions of this Article 12 shall
continue in effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as the Administrative Agent.
SECTION 12.10. AMENDMENTS CONCERNING AGENCY FUNCTION. The
Administrative Agent shall not be bound by any waiver, amendment, supplement or
modification of this Agreement or any other Facility Document which affects its
duties hereunder or thereunder unless it shall have given its prior consent
thereto.
SECTION 12.11. LIABILITY OF ADMINISTRATIVE AGENT. The
Administrative Agent shall not have any liabilities or responsibilities to any
Obligor on account of the failure of any Lender to perform its obligations
hereunder or to any Lender on account of the failure of any Obligor or any
other Lender to perform its obligations hereunder or under any other Facility
Document.
SECTION 12.12. TRANSFER OF AGENCY FUNCTION. Without the consent of
the Obligors or any Lender, the Administrative Agent may at any time or from
time to time transfer its functions as Administrative Agent hereunder to any of
its offices wherever located, provided that the Administrative Agent shall
promptly notify the Borrower and the Lenders thereof.
SECTION 12.13. NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT.
Unless the Administrative Agent shall have been notified by a Lender or the
Borrower (either one as appropriate being the "Payor") prior to the date on
which such Lender is to make payment hereunder to the Administrative Agent of
the proceeds of a Loan or the Borrower or the Subsidiary Borrower is to make
payment to the Administrative Agent, as the case may be (either such payment
being a "Required Payment"), which notice shall be effective upon receipt, that
the Payor
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does not intend to make the Required Payment to the Administrative Agent, the
Administrative Agent may assume that the Required Payment has been made and
may, in reliance upon such assumption (but shall not be required to), make the
amount thereof available to the intended recipient on such date and, if the
Payor has not in fact made the Required Payment to the Administrative Agent,
the recipient of such payment (and, if such recipient is the Borrower or the
Subsidiary Borrower and the Payor Lender fails to pay the amount thereof to the
Administrative Agent forthwith upon demand, the Borrower or the Subsidiary
Borrower) shall, on demand, repay to the Administrative Agent the amount made
available to it together with interest thereon for the period from the date
such amount was so made available by the Administrative Agent until the date
the Administrative Agent recovers such amount at a rate per annum equal to the
average daily Federal Funds Rate for such period.
SECTION 12.14. WITHHOLDING TAXES. Each Lender represents that it is
entitled to receive any payments to be made to it hereunder without the
withholding of any tax and will furnish to the Administrative Agent such forms,
certifications, statements and other documents as the Administrative Agent may
request from time to time to evidence such Lender's exemption from the
withholding of any tax imposed by any jurisdiction or to enable the
Administrative Agent to comply with any applicable laws or regulations relating
thereto. Without limiting the effect of the foregoing, if any Lender is not
created or organized under the laws of the United States of America or any
state thereof, in the event that the payment of interest by the Borrower or the
Subsidiary Borrower is treated for U.S. income tax purposes as derived in whole
or in part from sources from within the U.S., such Lender will furnish to the
Administrative Agent Form 4224 or Form 1001 of the Internal Revenue Service, or
such other forms, certifications, statements or documents, duly executed and
completed by such Lender as evidence of such Lender's exemption from the
withholding of U.S. tax with respect thereto. The Administrative Agent shall
not be obligated to make any payments hereunder to such Lender in respect of
any Obligation until such Lender shall have furnished to the Administrative
Agent the requested form, certification, statement or document.
SECTION 12.15. SEVERAL OBLIGATIONS AND RIGHTS OF LENDERS. The
failure of any Lender to make any Loan to be made by it on the date specified
therefor shall not relieve any other Lender of its obligation to make its Loans
on such date, but no Lender shall be responsible for the failure of any other
Lender to make a Loan to be made by such other Lender. The amounts payable at
any time hereunder to each Lender shall be a separate and independent debt, and
each Lender shall be entitled to protect and enforce its rights arising out of
this Agreement, and it shall not be necessary for any other Lender to be joined
as an additional party in any proceeding for such purpose.
SECTION 12.16. PRO RATA TREATMENT OF LOANS ETC. Except to the
extent otherwise provided: (a) each borrowing under Section 2.01 shall be made
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from the Lenders, each reduction or termination of the amount of the
Commitments under Section 2.08 shall be applied to the Commitments of the
Lenders, and each payment of commitment fee accruing under Section 2.12(a)
shall be made for the account of the Lenders, pro rata according to the amounts
of their respective unused Commitments; (b) each conversion under Section 2.05
of Loans of a particular type (but not conversions provided for by Section
4.04), shall be made pro rata among the Lenders holding Loans of such type
according to the respective principal amounts of such Loans by such Lenders;
(c) each prepayment and payment of principal of or interest on Loans of a
particular type, a particular class and a particular Interest Period shall be
made to the Administrative Agent for the account of the Lenders holding Loans
of such type, class and Interest Period pro rata in accordance with the
respective unpaid principal amounts of such Loans of such type, class and
Interest Period held by such Lenders; and (d) each prepayment and payment of
fees under Section 3.09(a) and Letter of Credit Obligations shall be made pro
rata in accordance with the pro rata share of the Lenders in the Letter of
Credit Obligations held by each of them.
SECTION 12.17. SHARING OF PAYMENTS AMONG LENDERS. If a Lender shall
obtain payment of any principal of or interest on any Obligation held by it
through the exercise of any right of setoff, banker's lien, counterclaim, or by
any other means, it shall promptly purchase from the other Lenders
participations in (or, if and to the extent specified by such Lender, direct
interests in) the Obligations of the other Lenders in such amounts, and make
such other adjustments from time to time as shall be equitable to the end that
all the Lenders shall share the benefit of such payment (net of any expenses
which may be incurred by such Lender in obtaining or preserving such benefit)
pro rata in accordance with the unpaid principal and interest on the
Obligations held by each of them. To such end the Lenders shall make
appropriate adjustments among themselves (by the resale of participations sold
or otherwise) if such payment is rescinded or must otherwise be restored. Each
of the Obligors agrees that any Lender so purchasing a participation (or direct
interest) in the Obligations held by the other Lenders may exercise all rights
of setoff, banker's lien, counterclaim or similar rights with respect to such
participation (or direct interest). Nothing contained herein shall require any
Lender to exercise any such right or shall affect the right of any Lender to
exercise, and retain the benefits of exercising, any such right with respect to
any other indebtedness of any Obligor or its affiliates.
SECTION 12.18. SECURITY DOCUMENTS. Subject to the foregoing
provisions of this Section 12, the Administrative Agent shall, on behalf of the
Lenders: (a) execute any and all of the Security Documents on behalf of the
Lenders; (b) hold and apply any and all Collateral, and the proceeds thereof,
at any time received by it, in accordance with the provisions of the Security
Documents and this Agreement; (c) exercise any and all rights, powers and
remedies of the Lenders under this Agreement or any of the Security Documents,
including the giving of any consent or waiver or the entering into of any
amendment, subject to
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the provisions of Section 12.03; (d) execute, deliver and file financing
statements, mortgages, deeds of trust, lease assignments and other such
agreements, and possess instruments on behalf of any or all of the Lenders; and
(e) in the event of acceleration of the Borrower's or the Subsidiary Borrower's
obligations hereunder, use its best efforts to sell or otherwise liquidate or
dispose of the Collateral and otherwise exercise the rights of the Lenders
thereunder upon the direction of the Required Lenders.
SECTION 12.19. COLLATERAL. Notwithstanding Section 12.18, the
Administrative Agent and the other Lenders agree, as among themselves, that the
Administrative Agent shall not, without the consent of the Required Lenders,
make any sale or disposition of the Collateral pursuant to any of the Security
Documents. The Administrative Agent acknowledges to the other Lenders that it
is acting in an agency capacity hereunder and that the security interest in the
Collateral granted under the Security Documents secures the Obligations held by
all of the Lenders. In the event of any Default or Event of Default, the
Administrative Agent will apply and/or pay over to the Lenders any net proceeds
derived from the Collateral pro rata on the basis of the aggregate unpaid
principal and interest of the Obligations held by the Lenders. The
Administrative Agent will be reimbursed or properly indemnified by the Lenders
in the event the Administrative Agent is requested by the Lenders to take or
omit to take any action with respect to the Collateral (any such reimbursement
or indemnification to be pro rata as provided in Section 12.05). The
Administrative Agent shall have the right to retain counsel to advise it as to
any action or decision with respect to the Collateral and shall be reimbursed
by the other Lenders for the cost of the same (to the extent the Administrative
Agent is not reimbursed by any Obligor) prior to distributing any of the
Collateral or any proceeds thereof (any such reimbursement to be pro rata as
aforesaid).
SECTION 12.20. AMENDMENT OF ARTICLE 12.. Each of the Obligors hereby
agrees that the foregoing provisions of this Article 12 constitute an agreement
amount the Administrative Agent and the Lenders and that any and all of the
provisions of this Article 12 may be amended at any time by the Administrative
Agent and the Required Lenders without the consent or approval of, or notice
to, such Obligor.
ARTICLE 13. MISCELLANEOUS
SECTION 13.01. AMENDMENTS AND WAIVERS. Except as otherwise
expressly provided in this Agreement, any provision of this Agreement may be
amended or modified only by an instrument in writing signed by the Borrower,
the Subsidiary Borrower (if affected), the Administrative Agent and the
Required Lenders, or by the Borrower and the Administrative Agent acting with
the consent of the Required Lenders and any provision of this Agreement may be
waived by the Required Lenders or by the Administrative Agent acting with the
consent of the
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Required Lenders; provided that no amendment, modification or waiver shall,
unless by an instrument signed by all of the Lenders or by the Administrative
Agent acting with the consent of all of the Lenders: (a) increase or extend the
term, or extend the time or waive any requirement for the reduction or
termination, of the Commitments; (b) extend the date fixed for the payment of
principal of or interest on any Loan, any Letter of Credit Obligation or any
fee payable hereunder; (c) reduce the amount of any payment of principal
thereof or the rate at which interest is payable thereon or any fee payable
hereunder, (d) alter the terms of this Section 12.01; (e) amend the definition
of the term "Required Lenders"; (f) waive any of the conditions precedent set
forth in Article 5 hereof; (g) discharge any Guarantor from the Unconditional
Guaranty under Article 11 hereof; or (h) release all or any part of the
Collateral in excess of $500,000 and provided, further, that any amendment of
Article 12 or any amendment which increases the obligations of the
Administrative Agent hereunder shall require the consent of the Administrative
Agent. No failure on the part of the Administrative Agent or any Lender to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof or preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
SECTION 13.02. USURY. Anything herein to the contrary
notwithstanding, the obligations of the Obligors under this Agreement, the
Notes and the other Facility Documents shall be subject to the limitation that
payments of interest shall not be required to the extent that receipt thereof
would be contrary to provisions of law applicable to a Lender limiting rates of
interest which may be charged or collected by such Lender.
SECTION 13.03. EXPENSES. Each of the Obligors (including, insofar
as it is responsible for such expenses, the Subsidiary Borrower) shall
reimburse the Administrative Agent on demand for all reasonable costs, expenses
and charges (including, without limitation, reasonable fees and charges of
external legal counsel for the Administrative Agent) in connection with the
preparation of, and any amendment, supplement, waiver or modification to (in
each case, whether or not consummated), this Agreement, any other Facility
Document and any other documents prepared in connection herewith or therewith.
Each of the Obligors shall reimburse the Administrative Agent and each Lender
for all reasonable costs expenses and charges (including, without limitation,
reasonable fees and charges of external legal counsel for the Administrative
Agent and each Lender) in connection with the enforcement or preservation of
any rights or remedies during the existence of a Default or Event of Default
(including, without limitation, in connection with any restructuring or
insolvency or bankruptcy proceeding). Each of the Obligors agrees to indemnify
the Administrative Agent and each Lender and their respective directors,
officers, employees and agents from, and hold each of them harmless against,
any and all losses, liabilities, claims, damages or expenses incurred by any of
them arising out of or by reason of any investigation or litigation or other
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proceedings (including any threatened investigation or litigation or other
proceedings) arising out of or relating to this Agreement or any other Facility
Document or to any actual or proposed use by the Borrower of the proceeds of
the Loans or the Letters of Credit or to the performance or enforcement of this
Agreement or the other Facility Documents, including, without limitation, the
reasonable fees and disbursements of counsel incurred in connection with any
such investigation or litigation or other proceedings (but excluding any such
losses, liabilities, claims, damages or expenses incurred by reason of the
gross negligence or wilful misconduct of the Person to be indemnified).
SECTION 13.04. SURVIVAL. The obligations of the Obligors under
Sections 4.01, 4.05, 13.03 and 13.18 shall survive the repayment of the
Obligations and the termination of the Commitments and the Letters of Credit.
SECTION 13.05. ASSIGNMENT: PARTICIPATIONS. (a) This Agreement
shall be binding upon, and shall inure to the benefit of, the Borrower, the
Subsidiary Borrower, the Guarantors, the Administrative Agent, the Lenders and
their respective successors and assigns, except that the Borrower, the
Subsidiary Borrower and the Subsidiary Guarantors may not assign or transfer
its rights or obligations hereunder except as otherwise permitted under Section
8.10(c). Each Lender may assign or sell participations in all of its rights
and obligations hereunder or any part of its rights and obligations hereunder
to another financial institution or other entity; provided that any assignment
or participation by any Lender of its rights and obligations in respect of the
Letters of Credit shall require the prior consent of the Issuing Lender, such
consent not to be unreasonably withheld, in which event (i) in the case of an
assignment, upon notice thereof by the Lender to the Borrower or Subsidiary
Borrower with a copy to the Administrative Agent, the assignee shall have, to
the extent of such assignment (unless otherwise provided therein), the same
rights, benefits and obligations as it would have if it were a Lender
hereunder; and (ii) in the case of a participation, the participant shall have
no rights under the Facility Documents and all amounts payable by the Borrower
and the Subsidiary Borrower under Article 4 shall be determined as if such
Lender had not sold such participation. The agreement executed by such Lender
in favor of the participant shall not give the participant the right to require
such Lender to take or omit to take any action hereunder except action directly
relating to (i) the extension of a payment date with respect to any portion of
the principal of or interest on any amount outstanding hereunder allocated to
such participant, (ii) the reduction of the principal amount outstanding
hereunder allocated to such participant or (iii) the reduction of the rate of
interest payable on such amount or any amount of fees payable hereunder to a
rate or amount, as the case may be, below that which the participant is
entitled to receive under its agreement with such Lender. Such Lender may
furnish any information concerning any LCC Consolidated Entity or any of their
respective affiliates in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants);
provided that such Lender shall require
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any such prospective assignee or such participant (prospective or otherwise) to
agree in writing to maintain the confidentiality of such information. In
connection with any assignment or sale of a participation interest pursuant to
this paragraph (a), the assigning or selling Lender shall pay the
Administrative Agent an administrative fee for processing such assignment or
participation in the amount of $5,000.
(b) In addition to the assignments and participations
permitted under paragraph (a) above, any Lender may assign and pledge all or
any portion of the Obligations held by it to (i) any affiliate of such Lender
or (ii) any Federal Reserve Bank as collateral security pursuant to Regulation
A of the Board of Governors of the Federal Reserve System and any Operating
Circular issued by such Federal Reserve Bank. No such assignment shall release
the assigning Lender from its obligations hereunder.
SECTION 13.06. NOTICES...Unless the party to be notified otherwise
notifies the other party in writing as provided in this Section, and except as
otherwise provided in this Agreement, notices shall be given in writing to the
Administrative Agent, to the Lenders, to the Borrower, to the Subsidiary
Borrower and to the Subsidiary Guarantors by ordinary mail, hand delivery,
overnight courier or telecopier addressed to such party at its address on the
signature page of this Agreement. Notices shall be effective: (a) if given by
mail, 72 hours after deposit in the mails with first class postage prepaid,
addressed as aforesaid; and (b) if given by telecopier, when the telecopy is
transmitted to the telecopier number as aforesaid; provided that notices to the
Administrative Agent shall be effective upon receipt.
SECTION 13.07. SETOFF. Each of the Obligors, in addition to (and
without limitation of) any right of setoff, banker's lien or counterclaim a
Lender may otherwise have, each Lender shall be entitled, at its option, to
offset balances (general or special, time or demand, provisional or final) held
by it for the account of such Obligor at any of such Lender's offices, in
Dollars, in Norwegian Krone or in any other currency, against any amount
payable by such Obligor to such Lender under this Agreement, such Lender's
Notes, any Letter of Credit or any other Facility Document which is not paid
when due (regardless of whether such balances are then due to such Obligor), in
which case it shall promptly notify the Borrower and the Administrative Agent
thereof; provided that such Lender's failure to give such notice shall not
affect the validity thereof. Payments by any Obligor hereunder shall be made
without setoff or counterclaim.
SECTION 13.08. JURISDICTION; IMMUNITIES. (a) EACH OF THE OBLIGORS
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE OR UNITED
STATES FEDERAL COURT SITTING IN NEW YORK COUNTY OVER ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, NOTE, ANY
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LETTER OF CREDIT OR ANY OTHER FACILITY DOCUMENT, AND EACH OF THE OBLIGORS
HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURT.
EACH OF THE OBLIGORS IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS
IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES OF SUCH PROCESS TO
SUCH PERSON AT ITS ADDRESS SPECIFIED IN SECTION 13.06. EACH OF THE OBLIGORS
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY LAW. EACH OF THE OBLIGORS FURTHER WAIVES
ANY OBJECTION TO VENUE IN SUCH STATE AND ANY OBJECTION TO AN ACTION OR
PROCEEDING IN SUCH STATE ON THE BASIS OF FORUM NON CONVENIENS. EACH OF THE
OBLIGORS FURTHER AGREES THAT ANY ACTION OR PROCEEDING BROUGHT AGAINST THE
ADMINISTRATIVE AGENT OR ANY LENDER SHALL BE BROUGHT ONLY IN NEW YORK STATE OR
UNITED STATES FEDERAL COURT SITTING IN NEW YORK COUNTY.
(b) EACH OF THE OBLIGORS WAIVES ANY RIGHT IT MAY HAVE TO
JURY TRIAL. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY
EACH OF THE OBLIGORS AND EACH OF THE OBLIGORS ACKNOWLEDGES THAT NO PERSON
ACTING ON BEHALF OF ANOTHER PARTY TO THIS AGREEMENT HAS MADE ANY
REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO
MODIFY OR NULLIFY ITS EFFECT. EACH OF THE OBLIGORS FURTHER ACKNOWLEDGES THAT
IT HAS BEEN REPRESENTED (OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE
SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL
COUNSEL, SELECTED OF ITS OWN FREE WILL AND THAT IT HAS HAD THE OPPORTUNITY TO
DISCUSS THIS WAIVER WITH COUNSEL.
(c) Nothing in this Section 13.08 shall affect the right
of the Administrative Agent or any Lender to serve legal process in any other
manner permitted by law or affect the right of the Administrative Agent or any
Lender to bring any action or proceeding against any Obligor or its Property in
the courts of any other jurisdictions.
(d) To the extent that any Obligor has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether from service or notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise) with respect to itself or its
Property, such Obligor hereby irrevocably waives such immunity in respect of
its obligations under this Agreement, the Notes, the Letters of Credit and the
other Facility Documents.
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SECTION 13.09. TABLE OF CONTENTS: HEADINGS. Any table of contents
and the headings and captions hereunder are for convenience only and shall not
affect the interpretation or construction of this Agreement.
SECTION 13.10. SEVERABILITY. The provisions of this Agreement are
intended to be severable. If for any reason any provision of this Agreement
shall be held invalid or unenforceable in whole or in part in any jurisdiction,
such provision shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without in any manner affecting the
validity or enforceability thereof in any other jurisdiction or the remaining
provisions hereof in any jurisdiction. Without limiting the foregoing, to the
extent that mandatory and non-waivable provisions of applicable law (including
but not limited to any applicable business corporation and partnership laws)
otherwise would render the full amount of any Guarantor's obligations under
this Agreement and under the other Facility Documents invalid or unenforceable,
the respective obligations of such Guarantor under this Agreement and under the
other Facility Documents shall be limited to the maximum amount which does not
result in such invalidity or unenforceability.
SECTION 13.11. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and
the same instrument, and any party hereto may execute this Agreement by signing
any such counterpart.
SECTION 13.12. INTEGRATION. The Facility Documents set forth the
entire agreement among the parties hereto relating to the transactions
contemplated thereby and supersede any prior oral or written statements or
agreements with respect to such transactions.
SECTION 13.13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND INTERPRETED AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN
ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF
NO SUCH LAWS OR RULES ARE DESIGNATED, THE UCP AND AS TO MATTERS NOT GOVERNED BY
THE UCP, THE LAWS OF THE STATE OF NEW YORK.
SECTION 13.14. CONFIDENTIALITY. Each Lender and the Administrative
Agent agrees (on behalf of itself and each of its affiliates, directors,
officers, employees and representatives) to use reasonable precautions to keep
confidential, in accordance with safe and sound banking practices, any
non-public information supplied to it by the Borrower pursuant to this
Agreement which is identified by the Borrower as being confidential at the time
the same is delivered to such Lender or
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the Administrative Agent, provided that nothing herein shall limit the
disclosure of any such information (i) to the extent required by applicable
statute, rule, regulation or judicial process, (ii) to counsel for any of the
Lenders or the Administrative Agent, (iii) to bank examiners, auditors or
accountants, (iv) in connection with any litigation to which any one or more of
the Lenders is a party or (v) to any assignee or participant (or prospective
assignee or participant) so long as such assignee or participant (or
prospective assignee or participant) agrees in writing to use reasonable
precautions to keep such information confidential; and provided finally that in
no event shall any Lender or the Administrative Agent be obligated or required
to return any materials furnished by the Borrower. The obligations of the
Lenders and the Administrative Agent under this Section 13.14 shall survive the
repayment of the Obligations and the termination of the Commitments and the
Letters of Credit.
SECTION 13.15. TREATMENT OF CERTAIN INFORMATION. Each of the
Obligors (a) acknowledges that services may be offered or provided to it (in
connection with this Agreement or otherwise) by each Lender or by one or more
of their respective subsidiaries or affiliates and (b) acknowledges that
information delivered to each Lender by any LCC Consolidated Entity or any
affiliate may be provided to each such subsidiary and affiliate.
SECTION 13.16. ASSUMPTION: REAFFIRMATION. Each of the Subsidiary
Borrower, Microcell and the New Subsidiary Guarantor further agrees, by its
execution and delivery hereof, unconditionally and irrevocably accepts, adheres
to, and becomes a party to and bound as an "Obligor" as defined in and under
the Security Agreement and the Pledge Agreement as fully as if such Person had
been signatory to the Security Agreement and the Pledge Agreement as an
"Obligor" when the Security Agreement and the Pledge Agreement were executed
and delivered by the Obligors ab initio party thereto and the Administrative
Agent. In furtherance of the foregoing, each of the Obligors hereby expressly
grants, bargains, conveys, assigns, transfers, mortgages, hypothecates, pledges
and grants a continuing security interest to the Administrative Agent in all
right, title and interest of such Obligor in and to the "Collateral" as defined
in each of the Security Agreement, the Intellectual Property Security Agreement
and the Pledge Agreement. Each of the Obligors acknowledges that the Liens
granted to the Administrative Agent under the Security Documents in the
Collateral secure all Obligations of each of the Obligors under this Agreement,
the Notes, the Letters of Credit and the other Facility Documents, including,
without limitation, all liabilities and obligations under the Loans as herein
modified and all of the Letter of Credit Obligations. Notwithstanding the
foregoing sentence, it is understood that the pledge by the Subsidiary Borrower
of its Collateral shall only secure the obligations of the Subsidiary Borrower,
and shall not secure the obligations of any other Obligor. All references to
"Note" or "Notes" in any Facility Document shall be deemed to be to the Notes
issued hereunder. All references to "Loan" or "Loans" in any Facility Document
shall be deemed to be to the Loans incurred hereunder. All
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references to "Commitment" or "Commitments" in any Facility shall be deemed to
be to the Commitments granted hereunder. All references to "Secured
Obligations" in any Facility Document shall be deemed to include all liabilities
and obligations under the Loans as herein modified and all of the Letter of
Credit Obligations. Each of the Obligors further acknowledges and reaffirms all
of its other respective obligations and duties under the Facility Documents to
which it is a party.
SECTION 13.17. REVISED SCHEDULES. Each of the Administrative Agent,
the Lenders and the Obligors hereby agrees that (a) Schedule A to the Security
Agreement is hereby amended and restated as set forth on SCHEDULE A hereto, (b)
Schedule A to the Intellectual Property Security Agreement is hereby amended
and restated as set forth on SCHEDULE B hereto and (c) Schedule A to the
Pledge Agreement is hereby amended and restated as set forth on SCHEDULE C
hereto.
SECTION 13.18. REFUND OF TAXES. The obligations of each Obligor
under this Agreement, the Notes, the Letters of Credit and the other Facility
Documents to make payments in Dollars or in Norwegian Krone (the "Obligation
Currency") shall not be discharged or satisfied by any tender or recovery
pursuant to any judgment expressed in or converted into any currency other than
the Obligation Currency, except to the extent that such tender or recovery
results in the effective receipt by the Administrative Agent or a Lender of the
full amount of the Obligation Currency expressed to be payable to them under
this Agreement, the Notes, the Letters of Credit and the other Facility
Documents. If for the purpose of obtaining or enforcing judgment against any
Obligor in any court or in any jurisdiction, it becomes necessary to convert
into or from any currency other than the Obligation Currency (such other
currency being hereinafter referred to as the "Judgment Currency") an amount
due in the Obligation Currency, the conversion shall be made, at the Norwegian
Krone Equivalent or Dollar Equivalent, in the case of Norwegian Krone or
Dollars, and, in the case of other currencies, the rate of exchange (as quoted
by the Administrative Agent or if the Administrative Agent does not quote a
rate of exchange on such currency, by a known dealer in such currency
designated by the Administrative Agent) determined, in each case, as on the day
immediately preceding the day on which the judgment is given (such Banking Day
being hereinafter referred to as the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange
prevailing between the Judgment Currency Conversion Date and the date of actual
payment of the amount due, each Obligor covenants and agrees to pay such
additional amounts, if any, as may be necessary to ensure that the amount paid
in the Judgment Currency, when converted at the rate of exchange prevailing on
the date of payment, will produce the amount of the Obligation Currency which
could have been purchased with the amount of Judgment Currency stipulated in
the judgment or judicial award at the rate of exchange prevailing on the
Judgment Currency Conversion Date.
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(c) For purposes of determining the Norwegian Krone
Equivalent or Dollar Equivalent or rate of exchange for this Section 13.18,
such amount shall include any premium and costs payable in connection with the
purchase of the Obligation Currency.
SECTION 13.19. JUDGMENT CURRENCY. If a Lender shall become aware
that it is eligible for a refund in respect of Taxes actually paid by the
Borrower or the Subsidiary Borrower pursuant to Section 4.06, it shall promptly
notify the Borrower or the Subsidiary Borrower, as applicable, of the
availability of such refund and shall, within 30 days after receipt of a
request by the Borrower or the Subsidiary Borrower, as applicable, apply for
such refund or shall furnish to the Borrower or the Subsidiary Borrower, as
applicable, such forms, duly completed, as will enable the Borrower or the
Subsidiary Borrower, as applicable, to claim such refund on its own behalf. If
any Lender receives a refund in respect of any Taxes paid by the Borrower or
the Subsidiary Borrower, as applicable, pursuant to Section 4.06, it shall
repay such refund within 30 days after receipt, to the Borrower or the
Subsidiary Borrower, as applicable, net of all reasonable out-of-pocket
expenses of such Lender and without interest; provided that the Borrower or the
Subsidiary Borrower, as applicable, agrees to return to such Lender the amount
paid by it to the applicable Lender with respect to such refund (plus
applicable penalties, interest or other charges) in the event such Lender is
required to repay such refund.
SECTION 13.20. LIMITED WAIVE. Each Lender hereby waives any Event
of Default arising from noncompliance by the Borrower with Article 9 of the
Existing Credit Agreement for the Fiscal Quarter ending on September 30, 1998.
Except as otherwise expressly set forth in this Section 13.20, the terms of
this Agreement shall not operate as a waiver by the Lenders, or otherwise
prejudice the right, remedies or powers of the Lenders under this Agreement,
the Existing Credit Agreement, the other Facility Documents or applicable law.
Except as otherwise expressly set forth herein, no terms and provisions of the
other Facility Documents are modified or changed and the terms and provisions
of the other Facility Documents shall continue in full force and effect.
SECTION 13.21. SUBORDINATION AGREEMENTS. Each Lender and the
Administrative Agent hereby acknowledges that it consents and agrees to the
terms of the MCI Subordination Agreement and the Telcom Subordination
Agreement.
-87-
95
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
BORROWER:
LCC INTERNATIONAL, INC., A DELAWARE CORPORATION
By: /S/ XXXXXXX XXXXX
------------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Chief Financial Officer
Address for Notices:
0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Telecopier No.: (000) 000-0000
with a copy to:
0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attention: General Counsel
Telecopier No.: (000) 000-0000
-91-
96
SUBSIDIARY BORROWER:
LCC EUROPE AS (F/K/A
EUROPEAN TECHNOLOGY PARTNER AS), A NORWEGIAN CORPORATION
By: /S/ XXXXX X. XXXXXX
------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman
Address for Notices:
c/o LCC International, Inc.
0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Telecopier No.: (000) 000-0000
with a copy to:
c/o LCC International, Inc.
0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attention: General Counsel
Telecopier No.: (000) 000-0000
-92-
97
SUBSIDIARY GUARANTORS:
LCC DESIGN SERVICES, L.L.C., A DELAWARE LIMITED LIABILITY
COMPANY
By: /S/ XXXXX X. XXXXXX
------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President, General Counsel
LCC DEVELOPMENT COMPANY, L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY
By: /S/ XXXXX X. XXXXXX
------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President, General Counsel
MICROCELL MANAGEMENT, INC., A DELAWARE CORPORATION
By: /S/ XXXXXXX XXXXX
------------------------------------------------
Name: Xxxxxxx Xxxxx
Title:
-93-
98
XXXX TELECOMMUNICATIONS SERVICES, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY
By: /S/ XXXXX X. XXXXXX
------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President, General Counsel
Address for Notices:
c/o LCC International, Inc.
0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Telecopier No.: (000) 000-0000
with a copy to:
c/o LCC International, Inc.
0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attention: General Counsel
Telecopier No.: (000) 000-0000
-94-
99
ADMINISTRATIVE AGENT:
THE CHASE MANHATTAN BANK
By: /S/ XXXX X. ARIA
--------------------------------------------
Name: Xxxx X. Aria
Title: Vice President
Address for Notices:
0 Xxxxx Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxx, XX 00000
Attention: New York Agency
with a copy to:
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx Aria
-95-
100
LENDERS:
THE CHASE MANHATTAN BANK
By: /S/ XXXX X. ARIA
--------------------------------------------
Name: Xxxx X. Aria
Title: Vice President
Lending Office and Address for
Notices:
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx Aria
Telecopier No.: (000) 000-0000
-96-
101
SCHEDULE I
Revolving Credit Commitments
----------------------------
The Chase Manhattan Bank $20,000,000
Swingline Loan Commitments
--------------------------
The Chase Manhattan Bank $ 2,500,000
102
SCHEDULE 6.04
LITIGATION, ETC.
1. GBR v. Eurofon Incorp., & Co. KG, (Landgericht Dusseldorf, Germany).
Plaintiff Landlord filed a complaint against Eurofon seeking DM 110,000 on
breach of contract claim for failure to pay rent. Eurofon has filed a
motion seeking postponement of the case until the Appellate Court in
Dusseldorf decides a similar claim. The case was postponed and a decision
regarding the companion case is pending.
2. RCC Consultants, Inc. v. LCC International. At Law No. 96-1395 (Circuit
Court for the County of Arlington). On December 20, 1996, RCC Consultants,
Inc. ("RCC") filed a motion for judgment against LCC seeking $88,000.00 on
a breach of contract claim alleging that LCC had failed to pay for certain
site acquisition services. LCC counterclaimed against RCC, alleging breach
of and seeking damages in the amount of $25,000. The company believes it
has a meritorious defense to RCC's claims.
3. Xxxxxx v. LCC, Inc., ARCO No. 96-145-E, EEOC No. 10B-96-0082. On May 15,
1996, former LCC employee Xxxxxx Xxxxxx filed a complaint with the
Arlington County Human Rights Commission alleging sex discrimination and
sexual harassment in violation of Chapter 31 of the Arlington County Code.
An investigation was conducted by the Human Rights Commission and Xx.
Xxxxxx subsequently withdrew her complaint, claiming that she was not
satisfied with the investigation. The complaint now lies with the Equal
Employment Opportunity Commission who must decide whether or not to pursue
the claim If the EEOC does not decide to pursue the claim, Xx. Xxxxxx with
then have a right to file an individual right of action in the Federal
District Court for the Eastern District of Virginia within 90 days of her
receiving notice of such right from the EEOC. The Company appears to have
a meritorious defense.
4. Xxxxxx Xxxxxx, et al. v. Xxxx Xxxxxxx, et al. Civil Action No. 00-0-000,
Xxxxxxxx Xxxxx xx Xxxxxx Xxxxxx, state of Tennessee. On May 19, 1998,
Xxxxxx Xxxxxx and Xxxxx Xxxxxx, plaintiffs, filed a compliant against five
defendants, including Xxxx Telecommunications Services, LLC ("KTS") seeking
$250,000 in compensatory damages, plus punitive damages and fees, alleging
encroachment on the plaintiff's property in connection with the
construction of a telecommunications cell site on adjoining property.
Notice of the claim was served on CB Xxxxxxx Xxxxx, Inc., ("CBRE"), a
former shareholder in KTS, on July 9, 1998, and CBRE tendered the claim to
LCC under the terms of indemnification contained in the Redemption
Agreement between CBRE and KTS, dated as of August 1998. CBRE has not been
dismissed from the case and
103
notice has yet to be served on KTS. The Company appears to have a
meritorious defense.
5. Nguyen v. LCC International, Inc. HRC #97482E / EEOC / # 100980082 on
December 5, 1997, Xx. Xxxx Xxxxxx filed a complaint with the Fairfax Human
Rights Commission alleging that she had been subjected to disparate
treatment because of her national origin (Vietnamese) and/or sex (female).
The Company responded to the commission's request for information relating
to Xx. Xxxxxx and her claim on January 12, 1998. The Company believes it
has meritorious defense. The case remains pending with the Commission.
6. Rathole Drilling, Inc. v. LCC International, Inc. Cause No. 00-00-00000,
in the District Court, 79th Judicial District, Xxx Xxxxx County, Texas. On
November 20, 1998, Rathole Drillings, Inc., plaintiff, filed a Petition for
Declaratory Judgment against LCC seeking $130,644 in damages, plus costs
and fees, claiming that LCC breached a verbal contract to engage plaintiff
to perform drilling services on not less than eight sites in the Tampa,
Florida area. LCC received service of process on December 18, 1998, and
LCC's answer is due on February 1, 1999. LCC is in the process of
preparing its defense.
7. Xxxxxx Xxxxxx, et al. v. LCC International, et al., Civil Action No.
19657-NC, in the Court of Chancery of the State of Delaware, Castle County.
On February 12, 1999 the Class B Shareholders of Microcell Management, Inc.
filed a Verified Complaint against LCC International, Inc., Microcell
Management, Inc. and the individual defendants, Xxxx Xxxxx, Xxxxxx Xxxx,
Xxxxx Xxxxxx and Xxxxxx Xxxxxx (as members of Microcell's Board of
Directors), seeking rescission of the Shareholder's Agreement, the
appointment of a custodian or receiver pendente lite, unspecified monetary
damages, attorney fees and interest. On February 16, 1999, the plaintiffs
filed a motion to expedite and a motion for appointment of a receiver or
custodian. The Complaint and related motions allege that the defendants
(i) breached their fiduciary duty to ensure Microcell's financial health,
to refrain from usurping corporate opportunities from Microcell and to not
waste Microcell's corporate assets, (ii) tortiously interfered with
Microcell's prospective business relations and (iii) violated the
Shareholders' Agreement between LCC and Microcell's minority shareholders.
Microcell and LCC have filed a Motion to Dismiss and this Motion remains
pending.
8. See Schedule 6.07 for a description of certain foreign and state taxes
owing by the LCC Consolidated Entities.
104
SCHEDULE 6.07
TAXES
1. The Company has approximately $8,009,501 in its Accrued Foreign Tax
liability account at December 31, 1998. Approximately $658,319 of this
amount represents estimated accrued interest on outstanding foreign taxes.
The balance, approximately $7,351,182, represents liabilities which have
been accrued for Income Tax, Branch Profits Tax, and Withholding Tax for
approximately 27 countries.
2. The Company has approximately $3,624,391 in its Accrued State and Local Tax
Liability Account at December 31, 1998. Approximately $15,000 of this
amount represents estimated accrued interest on the outstanding state and
local taxes. The balance, approximately $3,609,391, represents liabilities
which have been accrued for Income Tax, Sales & Use Tax, Payroll Tax,
Property Tax, and Local Gross Receipts Tax.
105
SCHEDULE 6.09
SUBSIDIARIES, AFFILIATES
SUBSIDIARIES
1. LCC Design Services, L.L.C.
Address: 0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, Xxxxxxxx, 00000
Jurisdiction of Formation: Delaware
Ownership: The Borrower owns 99% and LCC Development Company,
L.L.C. owns 1% of the issued and outstanding membership interests in
LCC Design Services, L.L.C. LCC Design Services, L.L.C. owns 1% of
the issue and outstanding membership interest in LCC Development
Company, L.L.C.
2. LCC Europe Gmbh
Address: Xxxxxxxxxxxxxx 00
X-00000 Xxxxxxxxxx
Xxxxxxx
Jurisdiction of Formation: Germany
Ownership: The Borrower owns 100% of the ownership interests of
LCC Xxxxxx Xxxx
0. Xxxxxxx xx Xxxxxx S.A.R.L.
Address: 7 BD Xxxxxx Xxxxxxx, X.X. 00
00000 Xxxxxxxxx Xxxxx, Xxxxxx
Jurisdiction of Formation: France
Ownership: The Borrower owns 100% of the partnership interests
of Eurofon de France S.A.R.L.
4. LCC, United Kingdom, Ltd.:
Address: 00 Xxxxxxxx Xx.
0xx and Xxxxxx Xxxxx
Xxxxxx, X0X-0XX
Xxxxxx Xxxxxxx
Jurisdiction of Formation: United Kingdom
106
Ownership: The Borrower owns 99% and LCC Design Services, L.L.C. owns
1% of the ordinary shares of LCC, United Kingdom, Ltd.
5. LCC Development Company, L.L.C.:
Address: 0000 Xxxxx Xxxxxx Xxxxx
XxXxxx , Xxxxxxxx 00000
Jurisdiction of Formation: Delaware
Ownership: The Borrower owns 99% and LCC Design Services L.L.C. owns
1% of the issued and outstanding membership interests in LCC
Development Company, L.L.C. LCC Development Company, L.L.C. owns 1%
of the issued and outstanding membership interests in LCC Design
Services, L.L.C.
6. Microcell Management Inc. ("Microcell")
Address: 00000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Jurisdiction of Formation: Delaware
Ownership: The Borrower owns a 83.75% interest in
Microcell.
7. LCC do Brazil Ltda.
Address: Rue Xxxx Xxxxxx
1380 - Conj. 82
Sao Paulo, SP 00000-000
Xxxxxx
Jurisdiction of Formation: Brazil
Ownership: The Borrower owns a 100% interest in LCC do Brazil
Ltda.
8. Xxxx Telecommunications Services, L.L.C ("KTS")
Address: 00000 Xxx Xxxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Jurisdiction of Formation: Delaware
Ownership: The Borrower owns a 100% interest in KTS.
107
9. LCC Asia Pacific LTD PTE ("LCC Asia Pacific")
Address: Centrako Business Centre
0 Xxxxxxx Xxxx, #00-00
Xxxxxxxxx 000000
Jurisdiction of Formation: Singapore
Ownership: The Borrower owns 100% interest in LCC Asia Pacific.
10. LCC Europe AS
Address: Xxxxxxxxxxxx 00
X.X. Xxx 000
X-0000 Xxxxxx, Xxxxxx
Jurisdiction of Formation: Norway
Ownership: LCC owns 100% interest in LCC Europe AS.
11. LCC International Holdings NL, Inc.
Address: 0000 Xxxxx Xxxxxx Xxxxx
XxXxxx , Xxxxxxxx 00000
Jurisdiction of Formation: Delaware
Ownership: LCC owns a 100% equity interest in LCC
International Holdings NL, Inc.
12. LCC International Holdings, Belgium, Inc.
Address: 0000 Xxxxx Xxxxxx Xxxxx
XxXxxx , Xxxxxxxx 00000
Jurisdiction of Formation: Delaware
Ownership: LCC owns a 100% equity interest in LCC
International Holdings, Belgium, Inc.
AFFILIATES
1. Telcom Ventures, L.L.C. ("Telcom Ventures")
108
Address: 000 Xxxxx Xxxxx Xxxxxx, 0xx xxxxx
Xxxxxxxxxx, Xxxxxxxx, 00000
Jurisdiction of Formation: Delaware
Ownership: Cherrywood Holdings, Inc. (formerly LCC,
Incorporated) owns 75% and Carlyle (as that term is defined in the
Formation Agreement dated November 16, 1993 ("Carlyle")) owns 25% of
the issued and outstanding membership interests in Telcom Ventures.
Telcom Ventures owns 99% of the issued and outstanding membership
interests in RF Investors, L.L.C., which in turn owns all of the
outstanding shares of Class B Common Stock of LCC International, Inc.,
which represents approximately 92.2% of the combined voting power of
both classes of Common Stock of the Borrower. Telcom Ventures holds a
convertible subordinated promissory note of LCC in the principal
amount of $5,000,000 (the "TV Note") which is convertible into up to
approximately 882,325 shares of LCC Class A common stock, subject to
adjustment for stock splits, stock dividends, stock combinations and
similar events.
2. Cherrywood Holdings, Inc. (formerly LCC, Incorporated)
Address: 000 Xxxxx Xxxxx Xxxxxx, 0xx xxxxx
Xxxxxxxxxx, Xxxxxxxx, 00000
Jurisdiction of Formation: Kansas
Ownership: Cherrywood Holdings, Inc. owns 75% of the issued and
outstanding membership interests in Telcom Ventures, L.L.C., which in
turn owns 99% of the issued and outstanding membership interests in RF
Investors, L.L.C.
3. The Carlyle Group
Address: 0000 Xxxxxxxxxxxx Xxxxxx, Xxxxx Xxxx
Xxxxx 000 Xxxxx
Xxxxxxxxxx, XX 00000
Jurisdiction of Formation: Delaware
Ownership: Affiliates of The Carlyle Group owns 25% of the issued
and outstanding membership interests in Telcom Ventures, L.L.C., which
in turn owns 99% of the issued and outstanding membership interests in
RF Investors, L.L.C.
4. RF Investors, L.L.C.
Address: 000 Xxxxx Xxxxx Xxxxxx, 0xx xxxxx
Xxxxxxxxxx, Xxxxxxxx, 00000
Jurisdiction of Formation: Delaware
109
Ownership: RF Investors owns all of the outstanding shares of
Class B Common Stock, which represents 94.8% of the combined voting
power of both classes of Common Stock of LCC International, Inc.,
subject to increase on conversion of the TV Note described above.
5. This list of Affiliates lists only Subsidiaries of the Borrower, Affiliates
in which the Borrower has an ownership interest, and Affiliates which
directly own the Borrower, RF Investors, L.L.C., or Telcom Ventures, L.L.C.
This list does not include affiliates or related parties of the Singh
family.
OTHER SECURITYHOLDINGS
1. NextWave Telecom Inc.: The Borrower holds 1,666,666 shares of
Series B Common Stock of NextWave Telecom Inc., and warrants to purchase an
additional 123,356 shares of Series B Common Stock at $3.00 per share. In
December 1998, NextWave Telecom Inc. filed a voluntary petition for court
protection under Chapter 11 of the US Bankruptcy Code (following an earlier
filing by its subsidiaries on June 8, 1998), and the case remains pending. LCC
fully reserved its exposure with respect to this investment as of December 31,
1996.
2. DCR Communications, Inc. ("DCR"). On March 20, 1996, LCC,
L.L.C. executed a Convertible Note and Investment Agreement with DCR, which
subsequently changes its name to Pocket Communications, Inc., for two loans of
up to $6.5 million, all of which is outstanding. On April 1, 1997 Pocket
Communications, Inc. filed a voluntary petition for court protection under
Chapter 11 of the US Bankruptcy Code, and the case remains pending. LCC fully
reserved its exposure with respect to this note as of December 31, 1996.
3. Communication Consulting Services, Inc.: 1,050,000 shares of
common stock, $.001 par value per share, of Communication Consulting Services,
Inc., an Illinois corporation, have been pledged to the Borrower by Xxxx X.
Xxxxx and Xxxxx X. Xxxxx to secure payment of a promissory note in the
principal amount of $1,200,000 issued by Messers. Xxxxx and Xxxxx to the
Borrower as the purchase price for the pledged shares.
110
SCHEDULE 6.10
CREDIT ARRANGEMENTS
DEBT
1. The Borrower owes $ 20 million in principal under the Subordinated Note due
2000 executed by LCC, L.L.C. in favor of MCI Telecommunications Corporation
plus accrued interest.
2. The Borrower has assumed the obligations of Telcom Ventures under a
Subordinated Note due 2000 in the principal amount of $30 million in favor
of MCI Telecommunications Corporation.
3. See the description of the "TV Note" in item 1 under "Affiliates" on
Schedule 6.09.
4. As of the Closing Date, the Borrower had issued Letter of Credit for the
benefit of CTC Cellular in the amount of $66,946.40 secured by CD #
3300077055707 maturing on 11/28/96.
5. As of the Closing Date one or more of the Obligors is liable with respect to
the outstanding Letters of Credit issued pursuant to this Agreement.
LIENS*
As of September 30, 1996, Liens publicized by the following financing
statements (copies of which are held by the Administrative Agent):
1. UCC-1 financing statement # 92-225660 filed on November 18,
1992 with the Secretary of State of Texas against LCC, Incorporated secured by
XXXX Equipment Co.
2. UCC-1 financing statement # 940527 7204 filed on May 27, 1994
with the Virginia State Corporation Commission against LCC, Incorporated
secured by Advanced Computer Concepts.
3. UCC-1 financing statement # 940613 7169 filed on June 13, 1994
with the Virginia State Corporation Commission against LCC, Incorporated
secured by Pitney Xxxxx Credit Corporation.
4. UCC-1 financing statement # 94-11297017 filed on November 29,
1994 with the Virginia State Corporation Commission against LCC, Incorporated
secured by Pitney Xxxxx Credit Corporation.
111
5. UCC-1 financing statement # 54682 filed on November 30, 1994
with Arlington County, Virginia against LCC, Incorporated secured by Xxxxxxxxx
Xxxxxxxx together with attachments thereto.
6. UCC-1 financing statement # 941214 7168 filed on December 14,
1994 with the Virginia State Corporation Commission against LCC, Incorporated
secured by Xxxxxxxxx Xxxxxxxx together with attachments.
7. UCC-1 financing statement # 94-248131 filed on December 27,
1994 with the Secretary of State of Texas against LCC, Incorporated secured by
Plank Co.
8. UCC-1 financing statement # 950224 7117 filed on February 24,
1995 with the Virginia State Corporation Commission against LCC, Incorporated
secured by Pitney Xxxxx Credit Corporation.
9. UCC-1 financing statement # 950509 7087 filed on May 9, 1995
with the Virginia State Corporation Commission against LCC, Incorporated
secured by Pitney Xxxxx Credit Corporation.
10. UCC-1 financing statement # 55401 filed on June 20, 1995 with
Arlington County, Virginia against LCC, L.L.C. secured by AT&T Capital
Services Corp. covering MAR/2957B Asset # 700953.
11. UCC-1 financing statement # 950620 7701 filed on June 20, 1995
with the Virginia State Corporation Commission against LCC, L.L.C. secured by
AT&T Capital Services Corp. covering MAR/2957B Asset # 700953
12. UCC-1 financing statement # 55453 filed on July 5, 1995 with
Arlington County, Virginia against LCC, L.L.C. secured by AT&T Capital Services
Corp. covering MAR/2957B Asset # 692818.
13. UCC-1 financing statement # 55454 filed on July 5, 1995 with
Arlington County, Virginia against LCC, L.L.C. secured by AT&T Capital Services
Corp. covering MAR/2957D Asset # 711130.
14. UCC-1 financing statement # 950705 7312 filed on July 7, 1995
with the Virginia State Corporation Commission against LCC, L.L.C. secured by
Telogy, Inc. together with attachments thereto.
15. UCC-1 financing statement # 55477 filed on July 10, 1995 with
Arlington County, Virginia against LCC, L.L.C. secured by Telogy, Inc.
covering HP 8594E.
112
16. UCC-1 financing statement # 950717 7050 filed on July 17, 1995
with the Virginia State Corporation Commission against LCC, Incorporated
secured by Pitney Xxxxx Credit Corporation.
17. UCC-1 financing statement # 950824 7805 filed on August 24,
1995 with the Virginia State Corporation Commission against LCC, Incorporation
secured by AT&T Capital Services Corporation.
18. UCC-1 financing statement # 55634 filed on August 28, 1995
with Arlington County, Virginia against LCC, Incorporated secured by AT&T
Capital Services Corp. covering MAR/2957D, MAR/2957B & MAR/8593E.
19. UCC-1 financing statement #9509227248 filed on September 22,
1995 with the Virginia State Corporation Commission against LCC, L.L.C. secured
by Telogy, Inc.
20. UCC-1 financing statement # 55753 filed on September 25, 1995
with Arlington County, Virginia against LCC, L.L.C. secured by Telogy, Inc.
covering MAR/2957D.
21. UCC-1 financing statement # 56263 filed on February 23, 1996
with Arlington County, Virginia against LCC, L.L.C. secured by AT&T Capital
Services Corp. covering MAR/2967D.
22. UCC-1 financing statement #9603227216 filed on March 22, 1996
with the Virginia State Corporation Commission against LCC, L.L.C. secured by
Telogy, Inc.
23. UCC-1 financing statement # 56393 filed on March 25, 1996 with
Arlington County, Virginia against LCC, L.L.C. secured by Telogy, Inc.
24. UCC-1 financing statement # 56433 filed on April 2, 1996 with
Arlington County, Virginia against LCC, Inc. secured by AT&T Capital Services
Corp. covering MAR/2031.
25. UCC-1 financing statement # 960402 7832 filed on April 2, 1996
with the Virginia State Corporation Commission against LCC, Incorporated
secured by AT&T Capital Services Corp.
26. UCC-1 financing statement # 56580 filed on May 9, 1996 with
Arlington County, Virginia against LCC, Inc. secured by AT&T Capital Services
Corp. covering WAV/3600D.
27. UCC-1 financing statement # 960510 7817 filed on May 10, 1996
with the Virginia State Corporation Commission. against Telcom Ventures,
L.L.C. secured by Nomura Holding America Inc.
113
28. UCC-1 financing statement # 57092 filed on August 29, 1996
with Arlington County, Virginia against LCC, Inc. secured by AT&T Capital
Corporation covering R&S SME03.
----------------------------
* In addition, there are numerous filings of Chase Manhattan
Bank (National Association) as Administrative Agent pursuant to the Credit
Agreement date June 14, 1996 among LCC, L.L.C., LCC Design Services L.L.C., LCC
Development Company, L.L.C., the Lenders signatory thereto, and Chase Manhattan
Bank (National Association) as Administrative Agent.
INVESTMENTS
1. The Borrower owns 1,666,666 shares of Series B Common Stock of NextWave
Telecom Inc. and warrants to purchase 123,356 shares of series B Common
Stock.
2. The Borrower has executed a Convertible Note and Investment Agreement with
Pocket Communications, Inc. for two loans of up to $6.5 million,
approximately $6.5 million of which is outstanding.
3. The Borrower has received a Promissory Note, dated December 31, 1996, from
Pocket Communications, Inc., in the original principal amount of
$948,990.86. The principal amount has not been increased, but Pocket
continues to owe the Borrower additional amounts for services rendered
during 1996 and 1997. Please refer to the Borrower's Annual Report on Form
10-K, for the year ended December 31, 1997 in the Notes to Consolidated
Financial Statements, Note (9), "Special Charge" for a discussion
regarding these amounts.
4. The Borrower has received a Promissory Note, dated December 31, 1996 from
NextWave Telecom, Inc., in the original principal amount of $ 10,000,000.
On April 11, 1997, this amount and certain trade receivables were
consolidated under a revised payment plan as described in that certain
agreement between the parties executed as of the same date (the "April
Agreement"). NextWave continues to owe the Borrower approximately
$11,000,000 under the April Agreement. Please refer to the Borrower's
Annual Report on Form 10-K, for the year ended December 31, 1997, in the
Notes to Consolidated Financial Statements, Note (9), "Special Charge"" for
a discussion regarding these amounts. NextWave also owes Xxxx
Telecommunications Services, L.L.C. $2,100,000 under an outstanding
promissory note.
5. The Borrower has received a Promissory Note, dated September 26, 1996, from
Telecom Ventures, L.L.C., in the principal amount of $3,500,000.
114
Approximately $2.1 million in principal amount remains outstanding as of
12/31/98.
6. The Borrower has extended a revolving credit note to Microcell Management,
Inc., dated December 31, 1996, in the maximum principal amount of
$35,000,000. Approximately $18,822,000 is outstanding thereunder as of
12/31/98.
7. The Borrower has extended a revolving credit note to LCC Europe AS
(formerly European Technology Partners AS), dated June 16, 1997, in the
maximum principal amount of $10,000,000. Approximately US$10,807,555 of
debt outstanding under this Note was converted by LCC to share capital of
LCC Europe AS effective on or about December 28, 1998.
8. The Borrower has received a Promissory Note, dated September 30, 1998, from
Xxxx X. Xxxxx and Xxxxx X. Xxxxx in the original principal amount of
$1,200,000. This note was issued in payment of the purchase price of
1,050,000 shares of common stock, par value $.0001 per share, of
Communication Consulting Services, Inc., an Illinois corporation, purchased
from the Borrower by Messers. Xxxxx and Xxxxx. Payment of such purchase
price is secured by a pledge of such shares.
GUARANTEES
1. The Borrower has guaranteed the obligations of Microcell Management, Inc.
under its Master Construction Agreement, dated May 15, 1997, with PrimeCo
Personal Communications, L.P. and certain leases and related documents
issued thereunder.
2. The Borrower has guaranteed the payment obligations of Microcell
Management, Inc. under certain purchase orders for tower equipment issued
to the Fort Worth Tower Company.
115
SCHEDULE 6.11
MATERIAL CONTRACTS
1. Limited Liability Company Agreement of LCC Design Services, L.L.C. dated
August 1, 1994 as amended.
2. Limited Liability Company Agreement of Xxxx Telecommunications Services,
L.L.C. dated as of October 15, 1994.
3. Limited Liability Company Agreement of LCC Development Company, L.L.C.
dated January 24, 1996.
4. Shareholders Rights Agreement dated November 30, 1995 between NextWave
Telecom Inc. and LCC, L.L.C.
5. Amended and Restated Shareholders Rights Agreement dated February 1996
between NextWave Telecom Inc. and LCC, L.L.C.
6. Letter Agreement dated March 12, 1996 between NextWave Telecom Inc. and
LCC, L.L.C.
7. Subscription Agreement dated March 12, 1996 between NextWave Telecom Inc.
and LCC, L.L.C.
8. Agreement, dated April 11, 1997, between NextWave Telecom Inc. and LCC
International, Inc. regarding, among other things, payment of outstanding
receivables.
9. Convertible Loan and Investment Agreement dated March 20, 1996 between LCC,
L.L.C. and DCR Communications, Inc.
10. Series D Convertible Debenture due March 27, 2001 by DCR Communications,
Inc. dated March 27, 1996.
11. Series D Convertible Debenture due May 10, 2001 by DCR Communications, Inc.
dated May 10, 1996.
12. Subordinated Note due 2000 dated June 28, 1994 between LCC, L.L.C. and MCI
Telecommunications Corporation in the principal amount of $20,000,000 as
amended by Amendment to Subordinated Note Due 2000 dated as of July 25,
1996, Second Amendment to Subordinated Note Due 2000 1996 and Amendment to
Registration Rights Agreement dated as of October 23, 1997 and letters
dated August 10, 1998 and August 24, 1998 between LCC International, Inc.
and MCI Telecommunications Corporation.
116
13. Subordinated Note due 2000 dated June 28, 1994 between LCC, L.L.C. and
Telcom Ventures, L.L.C. in the principal amount of $30,000,000, as amended
by Amendment to Subordinated Note Due 2000 dated as of July 25, 1996,
Second Amendment to Subordinated Note Due 2000 dated as of September __,
1996, Third Amendment to Subordinated Note Due 2000 dated as of September
27, 1996, and Fourth Amendment to Subordinated Note Due 2000 and Amendment
to Registration Rights Agreement dated as of October 23, 1997 and letters
dated August 10, 1998 and August 24, 1998 between LCC International, Inc.
and MCI Telecommunications Corporation (the "TV Note").
14. Notice of Assignment of TV Note by Telcom Ventures, L.L.C. and LCC, L.L.C.
to MCI Telecommunications Corporation, dated as of September 27, 1996.
15. Amended and Restated Securityholders Agreement dated as July 25, 1996, by
and among Telcom Ventures, L.L.C., LCC, L.L.C. TC Group, L.L.C., LCC,
Incorporated and MCI Telecommunications Corporation, as amended by
Amendment to Amended and Restated Securityholders Agreement dated as of
July 25, 1996.
16. Subordination and Intercreditor Agreement, dated as of September 30, 1996,
by and among The Chase Manhattan Bank, as administrative agent, MCI
Telecommunications Corporation and LCC International, Inc., as amended by
letter dated November 7, 1996 between LCC International, Inc. and MCI
Telecommunications Corporation.
17. Registration Rights Agreement dated July 25, 1996 between LCC
International, Inc., RF Investors, L.L.C. and MCI Telecommunications
Corporation, as amended by Fourth Amendment to Subordinated Note Due 2000
and Amendment to Registration Rights Agreement dated as of October 23, 1997
and Second Amendment to Subordinated Note Due 2000 1996 and Amendment to
Registration Rights Agreement dated as of October 23, 1997.
18. Stock Purchase Agreement, dated as of September 30, 1998, by and among Xxxx
X. Xxxxx, Xxxxx X. Xxxxx and LCC International, Inc.
19. Stock Pledge Agreement, dated as of September 30, 1998, by and among Xxxx
X. Xxxxx, Xxxxx X. Xxxxx and LCC International, Inc.
20. Promissory Note, dated September 30, 1998, of Xxxx X. Xxxxx and Xxxxx X.
Xxxxx in the principal amount of $1,200,000 issued to LCC International,
Inc.
21. Guarantee Agreement, dated as of September 30, 1998, by Communications
Consulting Services, Inc. for the benefit of LCC International, Inc.
22. Promissory Note, dated January 28, 1998, of LCC International, Inc. in the
principal amount of $5,000,000 issued to Telcom Ventures, L.L.C.
117
23. Subordination and Intercreditor Agreement, dated as of January 28, 1999, by
and among The Chase Manhattan Bank, as Administrative Agent, Telcom
Ventures, L.L.C. and LCC International, Inc.
24. Revolving Credit Facility and Security Agreement, dated as of December 31,
1996, by and between LCC International, Inc. and Microcell Management, Inc.
and letter, dated March 12, 1999, btween the parties relating thereto.
25. Revolving Credit Note, dated December 31 1996, in the principal amount of
$35,000,000 issued by Microcell Management, Inc. to LCC International, Inc.
26. Shareholders' Agreement of Microcell Management, Inc., dated as of December
31, 1996, by and among Xxxxxx X. Xxxxxx, Xxxxxx X. XxXxxxx, Xx., R.
Xxxxxxx Xxxx, Xxx X. Xxxxxxx, III, Xxxxxx X. Xxxxx, III, Xxxxxx X. X'Xxxx
and Xxxx X. Xxxxxx and LCC International, Inc.
27. Trademark License Agreement, dated as of December 31, 1996, by and between
LCC International, Inc. and Microcell Management, Inc.
28. Registration Rights Agreement, dated as of December 31, 1996, by and
between Microcell Management, Inc., LCC International, Inc. and the
individual shareholders of Microcell Management, Inc. named therein.
29. Agreement dated May 17, 1996, between LCC, L.L.C. and West*Park Associates
Limited Partnership.
30. Agreement dated May 17, 1996, between LCC, L.L.C. and West*Park Associates
Limited Partnership, as amended January 24, 1997, June 15, 1998 and
February 26, 1999.
31. Sublease Agreement between LCC International, Inc. and Capital One Services
Incorporated, dated January 19, 1999.
32. Intercompany Agreement dated August 27, 1996 between LCC International,
Inc., Telcom Ventures, L.L.C., LCC, L.L.C., Cherrywood Holdings, Inc.,
Xxxxxxxx Xxxxx, Xxxxx Xxxxx, certain trusts for the benefit of members of
the Singh family, Carlyle-LCC Investors I, L.P., Carlyle-LCC Investors II,
L.P., Carlyle-LCC Investors III, L.P., Carlyle-LCC IV (E), L.P., MDLCC,
L.L.C. and TC Group, L.L.C.
33. Overhead and Administrative Services Agreement dated August 27, 1996
between LCC International, Inc. and Telcom Ventures, L.L.C.
34. Stock Option Agreement dated September 1996 between LCC International, Inc.
and the Carlyle Option Designees.
118
35. LCC International, Inc. 1996 Directors Stock Option Plan stock option
agreement and agreements issued pursuant thereto (other than Xxxx X. Ein).
36. LCC International, Inc. 1996 Directors Stock Option Plan stock option
agreements for Xxxx X. Ein.
37. LCC International, Inc. 1996 Employee Stock Option Plan incentive stock
option agreement and agreements issued pursuant thereto.
38. LCC International, Inc. 1996 Employee Stock Option Plan non-incentive stock
option agreement and agreements issued pursuant thereto.
39. LCC International, Inc. 1996 Employee Stock Option Plan non-incentive stock
option agreement (for employees who had been eligible to participate in the
LCC, L.L.C. 1994 Phantom Membership Plan or the LCC, L.L.C. 1996 Employee
Option Plan)
40. Phantom Membership Plan Exchange Agreement for Xxxxxx Xxxxx and Xxxxxx X.
Xxxx.
41. Phantom Membership Plan Exchange Agreement for all other participants in
the LCC, L.L.C. 1994 Phantom Membership Plan.
42. LCC International, Inc. 1996 Employee Stock Purchase Plan and agreements
issued pursuant thereto.
43. LCC International, Inc. Director Indemnity Agreements with Directors and
Officers of LCC Consolidated Entities.
44. Letter Agreement dated August 22, 1996 between LCC International, Inc. and
Xxxx Xxxxxxx.
45. Agreement Regarding Resignation of Employment and Other Matters, dated as
of October 5, 1998, between LCC International, Inc. and Xxxxxxxx X.
Xxxxxxx.
119
DEFAULTS UNDER MATERIAL CONTRACTS
1. NextWave Telecom Inc. is in default under the agreement described in Item 8
above and may be in default under the agreements described in Items 4
through 7 above.
2. DCR is in default under the debentures described in Items 10 and 11 above
and may be in default under the agreement described in Item 9 above.
3. See Item 7 of Schedule 6.04 regarding allegations that one or more of the
Obligors is in violation of one or more of the agreements described in
Items 24 through 28 above.
120
SCHEDULE 6.12
PROPRIETARY RIGHTS
TRADE AND SERVICE MARKS OF LCC CONSOLIDATED ENTITIES
Xxxx TM/ Serial Registration Registration
---- SM Number Date/Status Number
-- ------ ----------- ------
AFPlanner TM 74/198828 07/14/92 1700375
CellCAD TM 74/539166 8/15/95 1911208
CellCONNECT TM 74/393243 10/24/95 1930166
CellHOST TM 74/393242 3/26/95 1886569
CellSIGHT TM 74/220464 02/09/93 1751835
CellTRAC TM 74/220463 02/02/93 1750739
CelluMATE TM 73/774403 06/26/90 1603462
CM1000 TM 74/092084 07/19/94 1700238
EXP-2001 TM 74/430523 07/19/94 1845456
InfoSITE TM 74/360562 04/02/96 1965885
LCC (logo) TM/SM 74/092006 11/05/91 1663246
LL-2000 TM 74/430525 12/20/94 1868855
MICROSTORE TM 74/430524 Statement of Use filed n/a
MSAT TM 74/424885 8/6/96 1991530
PENCAT TM 74/019646 3/18/97 2045612
RSAT TM 73/818914 04/17/90 1591831
RSAT-PLUS TM 74/118833 10/29/91 1662324
RSAT 2000 TM 74/306751 04/16/93 1764314
DESKCAT TM n/a Application Date: 8/20/96 Application No.
75/153392
AQS TM n/a Application Date: 8/20/96 Application No.
75/153393 and No.
75/153391
All of the foregoing are owned by the Borrower.
121
REGISTERED COPYRIGHTS OF LCC CONSOLIDATED ENTITIES
LCC Software Programs Copyright Registration No. Expiration Date
--------------------- -------------------------- ---------------
CMA 0 000-000 July 1, 2168
CellTRAC 0 000-000 July 1, 2168
ANET 0 000-000 July 1, 2168
CellSIGHT 0 000-000 August 13, 2168
CellCAD 0 000-000 July 1, 2168
PATENTS OF LCC CONSOLIDATED ENTITIES
1. U.S. Serial Number: n/a
Filed: Sept. 20, 1996
Description: Polarization Diversity Antenna Array
2. US Serial Number: 08/895,874
Files: July 17, 1997
Description: A Quality Measurement System and Method for
Wireless Communications
Networks
All of the foregoing are owned by the Borrower.
122
MATERIAL PROPRIETARY RIGHTS GRANTED BY THIRD PARTIES
1. Agreement dated April 27, 1995 between Definitive Cellular Limited and
LCC, L.L.C.
2. Software License and Services Agreement dated February 24, 1995 between
LCC, L.L.C. and Oracle Corporation.
STEPS TAKEN TO PROTECT PROPRIETARY INFORMATION
Prior to commencement of employment with LCC, International ,
Inc. ("LCC") LCC's employees each sign an agreement which: (i) protects LCC,'s
proprietary and confidential information and prohibits disclosure of such LCC
information and (ii) establishes LCC's ownership of any work product of LCC
employees and provides for assignment of any related rights. Each
consultant, affiliate, agent or other contractor or subcontract signs a
comprehensive non-disclosure and ownership of work product agreement prior to
providing any services for LCC.
LCC protects its confidential and proprietary information by:
(i) only providing proprietary information to parties that have a need to know;
and (ii) by providing such information pursuant to an executed non-disclosure
agreement that specifically related to the proprietary information being
provided to the third party.
LCC provides its proprietary network modeling and system
monitoring software products (i.e., CellCAD and CellSIGHT) to clients who have
executed a comprehensive licensing agreement that has provisions that
establishes LCC's exclusive ownership of the software, the software manuals,
related software documentation and any other documentation provided to the
client and the agreements further prohibits; (i) use of the software or
documentation by any party other than licensee; and (ii) disclosure of any
information provided by LCC. LCC's field test measurement software products
(i.e., DeskCAT, Optimeyes, etc.) are licensed under "shrink-wrap" licenses
containing similar protection.
In addition, LCC customers, among other things, agree not to:
(i) reverse engineer, disassemble, decompile, interrogate or decode LCC's
software or any data files created by or associated with the software; (ii)
derive source code, methodologies or proprietary algorithms from the software;
(iii) modify the software or otherwise create any derivative work from the
software; (iv) assert the invalidity or contest the ownership by LCC of the
software, either as a complete or partial defense to any claim made by LCC or
any third party, or (v) take any action which may prejudice the validity of
LCC's rights, title and interest in and to the software. Each licensee agrees
that it shall not sell, assign, lease, sublease, license, sub-license or
otherwise transfer LCC's Software.
123
SECURITY AGREEMENT
SCHEDULE A
PLACES OF BUSINESS
1. Principal place of business, chief executive office and location of
books and records of each Obligor:
LCC, International, Inc.
LCC Design Services, L.L.C.
LCC Development Company, L.L.C.
0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Microcell Management L.L.C.
0000 Xxxxxx Xxxx
Xxxxxx, XX 00000
LCC Europe A.S.
Xxxxxxxxxxxx 00, X.X. Xxx 000
N-1471 Skarer, Norway
Xxxx Telecommunications Services, L.L.C
00000 Xxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
2. The subsidiaries of LCC International, Inc. which are not Obligors
have the following places of business:
LCC International Holdings NL, Inc.
LCC International Holdings Belgium, Inc.
0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
LCC, United Kingdom, Ltd.
00 Xxxxxxxx Xxxxxx
0xx and Xxxxxx Xxxxx
Xxxxxx X0X-0XX
Xxxxxx Xxxxxxx
LCC Europe Gmbh
Xxxxxxxxxxxx Xxxxx
X-00000 Xxxxxxxxxx
Xxxxxxx
000
Xxxxxx xx Xxxxxx S.A.R.L.
7 BD Xxxxxx Xxxxxxx, X.X. 00
00000 Xxxxxxxxx Xxxxx, Xxxxxx
LCC do Brazil Ltda.
Xxx Xxxx Xxxxxx, 0000-Xxxx. 82
Sao Paulo, SP 00000-000 Xxxxxx
LCC Asia Pacific LTD XXX
Xxxxxxxx Xxxxxxxx Xxxxxx, 0 Xxxxxxx Xxxx, #00-00
Xxxxxxxxx 000000
3. Other places of business where collateral was located as of
March 12, 1999:
LB&B
0000 X. Xxx Xxxxxx Xx.
Xxxxxxxx, XX 00000
125
INTELLECTUAL PROPERTY SECURITY AGREEMENT
SCHEDULE A
PROPRIETARY RIGHTS
1. COPYRIGHTS OF THE OBLIGORS
LCC Software Programs Copyright Registration No. Expiration Date
--------------------- -------------------------- ---------------
CMA 0 000-000 July 1, 2168
CellTRAC 0 000-000 July 1, 2168
ANET 0 000-000 July 1, 2168
CellSIGHT 0 000-000 August 13, 2168
CellCAD 0 000-000 July 1, 2168
Microstore n/a n/a
CellQuest n/a n/a
CellCONNECT n/a n/a
COLLECT n/a n/a
DeskCAT n/a n/a
OptimEyes n/a n/a
Auryst n/a n/a
CellAD n/a n/a
All of the foregoing are owned by the Borrower, with the exception of CellAD,
which is owned by LCC Europe AS.
2. PATENTS OF THE OBLIGORS
1. U.S. Serial Number: n/a
Filed: Sept. 20, 1996
Description: Polarization Diversity Antenna Array
2. US Serial Number: 08/895,874
Files: July 17, 1997
Description: A Quality Measurement System and Method for
Wireless Communications
Networks
All of the foregoing are owned by the Borrower.
126
3. TRADE AND SERVICE MARKS OF THE OBLIGORS
Xxxx TM/ Serial Registration Registration
---- SM Number Date/Status Number
-- ------ ----------- ------
AFPlanner TM 74/198828 07/14/92 1700375
CellCAD TM 74/539166 8/15/95 1911208
CellCONNECT TM 74/393243 10/24/95 1930166
CellHOST TM 74/393242 3/26/95 1886569
CellSIGHT TM 74/220464 02/09/93 1751835
CellTRAC TM 74/220463 02/02/93 1750739
CelluMATE TM 73/774403 06/26/90 1603462
CM1000 TM 74/092084 07/19/94 1700238
EXP-2001 TM 74/430523 07/19/94 1845456
InfoSITE TM 74/360562 04/02/96 1965885
LCC (logo) TM/SM 74/092006 11/05/91 1663246
LL-2000 TM 74/430525 12/20/94 1868855
MICROSTORE TM 74/430524 Statement of Use filed n/a
MSAT TM 74/424885 8/6/96 1991530
PENCAT TM 74/019646 3/18/97 2045612
RSAT TM 73/818914 04/17/90 1591831
RSAT-PLUS TM 74/118833 10/29/91 1662324
RSAT 2000 TM 74/306751 04/16/93 1764314
DESKCAT TM n/a Application Date: 8/20/96 Application No.
75/153392
AQS TM n/a Application Date: 8/20/96 Application No.
75/153393 and No.
75/153391
All of the foregoing are owned by the Borrower.
TRADE OR CORPORATE NAMES OF LCC CORPORATE ENTITIES
1. LCC, United Kingdom, Ltd.
2. LCC Development Company, L.L.C.
127
3. Eurofon de France S.A.R.L.
4. LCC International, Inc.
5. LCC Asia Pacific Pte Ltd.
6. LCC Design Services, L.L.C.
7. LCC Europe Gmbh
8. LCC do Brazil Ltda.
9. LCC International Holdings NL, Inc.
10. LCC International Holdings, Belgium, Inc.
11. Xxxx Telecommunications Services, L.L.C.
12. Microcell Management, Inc.
13. LCC Europe AS
128
OBLIGORS PLEDGE AGREEMENT
SCHEDULE A
SECTION 3.01
1. DCR Debentures.
2. Note, dated September 30, 1996 in the principal amount of $3,500,00.00
issued by Telcom Ventures, L.L.C. to the Borrower.
3. All of the membership interests in LCC Design Services, L.L.C. held by the
Borrower. The Borrower owns 99% of the membership interests in LCC Design
Services, L.L.C.
4. All of the membership interests in LCC Development Company, L.L.C. held by
the Borrower. The Borrower owns 99% of the membership interests in LCC
Development Company, L.L.C.
5. All of the membership interests in Eurofon Incorp. & Co. KG held by the
Borrower. The Borrower owns 100% of the membership interests in Eurofon
Incorp. & Co. KG.
6. All of the membership interests in Eurofon de France S.A.R.L. The Borrower
owns 100% of the membership interests in Eurofon de France S.A.R.L.
7. 65% of the outstanding ordinary shares of LCC, United Kingdom, Ltd. The
Borrower owns 99% of the outstanding ordinary shares of LCC, United
Kingdom, Ltd.
8. All of the membership interests in LCC Development Company, L.L.C. held by
LCC Design Services, L.L.C. LCC Design Services, L.L.C. owns 1% of the
membership interests in LCC Development Company, L.L.C.
9. All of the membership interests in LCC Design Services, L.L.C. held by LCC
Development Company, L.L.C. LCC Development Company, L.L.C. owns 1% of the
membership interests in LCC Design Services, L.L.C.
10. All of the membership interests in Xxxx Telecommunications Services, L.L.C.
held by the Borrower. The Borrower owns 100% of the membership interests
in Xxxx Telecommunications Services, L.L.C.
11. Revolving Credit Note, dated December 31, 1996, in the principal amount of
$35,000,000 issued by Microcell Management, Inc. to the Borrower.
129
12. 64,090 shares of the Common Stock of LCC Europe AS held by LCC
International, Inc.
13. 83,750 shares of Class A Common Stock, $.01 par value per share, of
Microcell Management, Inc. held by LCC International, Inc.*
14. Promissory Note, dated __________, of LCC Europe AS to LCC International,
Inc.
15. Promissory Note, dated September 30, 1998, in the principal amount of
$1,200,000 issued by Xxxx X. Xxxxx and Xxxxx X. Xxxxx to LCC International,
Inc.
16. 1,050,000 shares of common stock, par value $.0001 per share, of
Communication Consulting Services, Inc. pledged to LCC International, Inc.
Xxxx X. Xxxxx and Xxxxx X. Xxxxx upon foreclosure thereof pursuant to the
Stock Pledge Agreement, dated as of September 30, 1998, by and among Xxxx
X. Xxxxx, Xxxxx X. Xxxxx and LCC International, Inc.
-------------------------------------------
* LCC International, Inc. ("LCC") is party to a certain Shareholders'
Agreement of Microcell Management, Inc., dated as of December 31, 1996,
which may require that LCC or its successors or assigns obtain consents or
follow certain procedures prescribed therein prior to effecting any
transfer, pledge, assignment or other encumbrance of any of its rights in
such shares.
