<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 24, 1996
REGISTRATION NO. 333-6067
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
AMENDMENT NO. 3 TO
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
LCC INTERNATIONAL, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 4812 54-1807038
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification
incorporation Classification Number)
or organization) Code Number)
</TABLE>
ARLINGTON COURTHOUSE PLAZA II
2300 CLARENDON BOULEVARD, SUITE 800
ARLINGTON, VIRGINIA 22201
(703) 351-6666
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
---------------------
PIYUSH SODHA
PRESIDENT AND CHIEF EXECUTIVE OFFICER
LCC INTERNATIONAL, INC.
ARLINGTON COURTHOUSE PLAZA II
2300 CLARENDON BOULEVARD, SUITE 800
ARLINGTON, VIRGINIA 22201
(703) 351-6666
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------------
Copies to:
<TABLE>
<S> <C>
STEVEN M. KAUFMAN, ESQ. JUDITH R. THOYER, ESQ.
LORRAINE SOSTOWSKI, ESQ. PAUL, WEISS, RIFKIND, WHARTON & GARRISON
HOGAN & HARTSON L.L.P. 1285 AVENUE OF THE AMERICAS
555 THIRTEENTH STREET, N.W. NEW YORK, NEW YORK 10019-6064
WASHINGTON, D.C. 20004-1109 (212) 373-3000
(202) 637-5600
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable following effectiveness of this Registration Statement.
---------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY
DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
LCC INTERNATIONAL, INC.
CROSS-REFERENCE SHEET PURSUANT TO REGULATION S-K, ITEM 501(b)
<TABLE>
<CAPTION>
FORM S-1
ITEM NUMBER LOCATION IN PROSPECTUS
<C> <S> <C>
1. Forepart of the Registration Statement and
Outside Front Cover Page of
Prospectus.............................. Outside Front Cover Page
2. Inside Front and Outside Back Cover Pages
of Prospectus........................... Inside Front and Outside Back Cover Pages
3. Summary Information, Risk Factors and
Ratio of Earnings to Fixed Charges...... Prospectus Summary; The Company; Risk
Factors
4. Use of Proceeds........................... Use of Proceeds
5. Determination of Offering Price........... Underwriting
6. Dilution.................................. Dilution
7. Selling Security Holders.................. Principal and Selling Stockholders
8. Plan of Distribution...................... Outside Front Cover Page; Underwriting
9. Description of Securities to be
Registered.............................. Outside Front Cover Page; Prospectus
Summary; Description of Capital Stock
10. Interests of Named Experts and Counsel.... Not Applicable
11. Information with Respect to the
Registrant.............................. Outside Front Cover Page; Prospectus
Summary; Risk Factors; The Company; The
Merger; The MCI Notes, MCI Note
Assumption, MCI Conversion; Use of
Proceeds; Dividend Policy; Dilution;
Capitalization; Selected Consolidated
Financial Data; Management's Discussion
and Analysis of Financial Condition and
Results of Operations; Business;
Management; Certain Transactions;
Principal and Selling Stockholders;
Description of Capital Stock; Shares
Eligible for Future Sale; Consolidated
Financial Statements
12. Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities............................. Not Applicable
</TABLE>
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses in connection with the
sale and distribution of the securities being registered hereby, other than
underwriting discounts. All amounts are estimated except the Securities and
Exchange Commission registration fee and the National Association of Securities
Dealers, Inc. filing fee.
<TABLE>
<CAPTION>
PAYABLE BY
REGISTRANT
<S> <C>
SEC registration fee..................................................... $ 29,742
National Association of Securities Dealers, Inc. filing fee.............. 7,308
Nasdaq National Market entry fee......................................... 31,000
Blue Sky fees and expenses............................................... 17,000
Accounting fees and expenses............................................. 475,000
Legal fees and expenses.................................................. 625,000
Printing and engraving expenses.......................................... 250,000
Registrar and transfer agent's fees...................................... 10,000
Miscellaneous fees and expenses.......................................... 350,000
----------
Total.......................................................... $1,795,050
==========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware Law, a corporation may indemnify its
directors, officers, employees and agents and its former directors, officers,
employees and agents and those who serve, at the corporation's request, in such
capacities with another enterprise, against expenses (including attorneys'
fees), as well as judgments, fines and settlements in nonderivative lawsuits,
actually and reasonably incurred in connection with the defense of any action,
suit or proceeding in which they or any of them were or are made parties or are
threatened to be made parties by reason of their serving or having served in
such capacity. The Delaware Law provides, however, that such person must have
acted in good faith and in a manner he or she reasonably believed to be in (or
not opposed to) the best interests of the corporation and, in the case of a
criminal action, such person must have had no reasonable cause to believe his or
her conduct was unlawful. In addition, the Delaware Law does not permit
indemnification in an action or suit by or in the right of the corporation,
where such person has been adjudged liable to the corporation, unless, and only
to the extent that, a court determines that such person fairly and reasonably is
entitled to indemnity for costs the court deems proper in light of liability
adjudication. Indemnity is mandatory to the extent a claim, issue or matter has
been successfully defended.
The Company's Certificate of Incorporation provides for mandatory
indemnification of directors and officers to the fullest extent permitted by the
Delaware Law. Under the Certificate of Incorporation, the Company shall advance
expenses incurred by an officer or director in defending any such action if the
director or officer undertakes to repay such amount if it is determined that he
or she is not entitled to indemnification. The Company will obtain directors and
officers liability insurance.
The Company will enter into separate indemnification agreements with each
of its directors and executive officers pursuant to which the Company will
agree, among other things, and subject to certain limited exceptions: (i) to
indemnify them to the fullest extent permitted by law against any liabilities
and expenses (including attorneys fees) reasonably incurred in connection with
any threatened, pending or completed action or other proceeding arising from the
fact that they are each in an Indemnifiable Capacity or because of anything done
or not done by each of them in such Indemnifiable Capacity, and (ii) to advance
any such expenses no later than thirty days after demand. An Indemnifiable
Capacity is defined as the fact that the person is or was a director or
executive officer of the Company, or, while a director or executive officer of
the
II-1
<PAGE> 4
Company, is or was serving at the request of the Company as a director, officer,
partner, venturer, proprietor, trustee, employee, agent or similar functionary
of another corporation, partnership, joint venture, sole proprietorship, trust,
nonprofit entity, employee benefit plan or other enterprise.
The Underwriting Agreement provides for indemnification by the Underwriters
of the directors, officers and controlling persons of the Company against
certain liabilities, including liabilities under the Securities Act under
certain circumstances.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
From the Company's inception on June 4, 1996 through the date hereof, the
Company has issued and sold the following securities:
On June 13, 1996, LCC International issued 10 shares of Class A Common
Stock to the Limited Liability Company for a purchase price of $15.00 per
share.
Such issuance of securities described above was made in reliance on the
exemption from registration provided by Section 4(2) of the Securities Act
("Section 4(2)") as a transaction by an issuer not involving any public
offering. In addition, in connection with the Merger, the Company intends to
issue 11,455,227 shares of Class B Common Stock to RF Investors, 85,233 shares
of Class B Common Stock to the Founder Corporation and 28,411 shares of Class A
Common Stock to TC Group. Such transactions will also be exempt from
registration pursuant to Section 4(2).
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ---------- ----------------------------------------------------------------------------------
<C> <S>
1 -- Form of Underwriting Agreement.*
3.1 -- Restated Certificate of Incorporation of the Company.*
3.2 -- Amended and Restated Bylaws of the Company.*
4.1 -- Form of Class A and Class B Common Stock certificates.*
5 -- Opinion regarding legality of shares being registered.*
10.1 -- Lease Agreement dated July 23, 1990 between LCC, Incorporated and Second
Courthouse Plaza Association Limited Partnership, assigned to Telcom Ventures,
L.L.C. by agreement dated December 31, 1993, and further assigned to LCC,
L.L.C. by agreement dated May 25, 1995, and Lease Extension Agreement thereto,
dated March 19, 1996.*
10.2 -- Employment Agreement dated September 14, 1990 between LCC, Incorporated and
Piyush Sodha.*
10.3 -- Lease Agreement dated January 28, 1991 between Second Courthouse Plaza
Associates Limited Partnership and LCC, Incorporated and Lease Extension
Agreement thereto, dated March 19, 1996.*
10.4 -- Assignment of Lease and Landlord's Consent to Assignment dated December 31,
1993 by and between Second Courthouse Plaza Associates Limited Partnership,
LCC, Incorporated and Telcom Ventures, L.L.C., as further assigned to LCC,
L.L.C. by agreement dated May 25, 1995.*
10.5 -- Lease Extension Agreement dated December 31, 1993 by and among Second
Courthouse Plaza Associates Limited Partnership and Telcom Ventures, L.L.C.*
10.6 -- 1994 LCC, L.L.C. Incentive Compensation Plan.*
10.7 -- Sublease Agreement dated May 7, 1994 between LCC, L.L.C. and Minirth-Meier Byrd
Clinic, P.A.*
</TABLE>
II-2
<PAGE> 5
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ---------- ----------------------------------------------------------------------------------
<C> <S>
10.8 -- Lease Agreement dated May 9, 1994 between Colonial Village Center Associates
and LCC, L.L.C. and First Amendment thereto, dated May 1, 1995.*
10.9 -- Subordinated Note due 2000 by Telcom Ventures, L.L.C. payable to MCI Telecom-
munications Corporation dated June 28, 1994.*
10.10 -- Subordinated Note due 2000 by LCC, L.L.C. payable to MCI Telecommunications
Corporation dated June 28, 1994.*
+10.11 -- Agreement dated November 15, 1994 by and between LCC, L.L.C. and Pacific Bell
Mobile Services.*
+10.12 -- Amended and Restated Software License and Services Agreement dated July 1, 1995
by and between TSI, a division of LCC, L.L.C. and NEXTEL Communications, Inc.*
10.13 -- LCC International, Inc. 1996 Directors Stock Option Plan.*
10.14 -- LCC International, Inc. 1996 Employee Stock Option Plan.*
10.15 -- LCC International, Inc. 1996 Employee Stock Purchase Plan.*
10.16 -- Amended and Restated Shareholders' Rights Agreement dated February , 1996
between NextWave Telecom Inc. and LCC, L.L.C.*
10.17 -- Letter Agreement dated March , 1996 between NextWave Telecom, Inc. and LCC,
L.L.C.*
+10.18 -- Letter Agreement dated March 12, 1996 between NextWave Telecom, Inc. and LCC,
L.L.C.*
10.19 -- Subscription Agreement dated March , 1996 between NextWave Telecom, Inc. and
LCC, L.L.C.*
10.20 -- Office Building Lease dated March 19, 1996 between Second Courthouse Associates
Limited Partnership and LCC, L.L.C.*
10.21 -- Convertible Loan and Investment Agreement dated March 20, 1996 by and between
LCC, L.L.C. and DCR Communications, Inc.*
+10.22 -- Letter Agreement dated March 20, 1996 by and between LCC, L.L.C. and DCR
Communications, Inc.*
10.23 -- Agreement dated May 17, 1996, between LCC, L.L.C. and West*Park Associates
Limited Partnership for office space at 7925 Jones Branch Drive, McLean,
Virginia, 22102.*
10.24 -- Agreement dated May 17, 1996, between LCC, L.L.C. and West*Park Associates
Limited Partnership for office space at 7927 Jones Branch Drive, McLean,
Virginia, 22102.*
10.25 -- Letter Agreement dated May 31, 1996 between LCC International, Inc. and Arno
Penzias.*
10.26 -- Credit Agreement dated June 14, 1996 among LCC, L.L.C., LCC Design Services,
L.L.C., LCC Development Company, L.L.C. and The Chase Manhattan Bank (National
Association).*
10.27 -- Security Agreement dated June 14, 1996 among LCC, L.L.C., LCC Design Services,
L.L.C. and LCC Development Company, L.L.C., in favor of The Chase Manhattan
Bank (National Association).*
10.28 -- Intellectual Property Security Agreement dated June 14, 1996 by LCC, L.L.C. in
favor of The Chase Manhattan Bank (National Association).*
10.29 -- Pledge Agreement dated June 14, 1996 among LCC, L.L.C., LCC Design Services,
L.L.C. and LCC Development Company, L.L.C., in favor of The Chase Manhattan
Bank (National Association).*
</TABLE>
II-3
<PAGE> 6
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ---------- ----------------------------------------------------------------------------------
<C> <S>
10.30 -- Intercompany Agreement dated as of August 27, 1996 among Telcom Ventures,
L.L.C., LCC, L.L.C., LCC International, Inc., Cherrywood Holdings, Inc.,
Rajendra Singh, Neera Singh, 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.*
10.31 -- Registration Rights Agreement dated July 25, 1996 among LCC International,
Inc., RF Investors, L.L.C. and MCI Telecommunications Corporation.*
10.32 -- Form of Indemnity Agreement between LCC International, Inc. and each of
Rajendra Singh, Neera Singh, Piyush Sodha, Mark D. Ein, Arno A. Penzias, J.
Michael Bonin, Kathryn M. Condello, Peter A. Deliso, Richard Hozik, Frank F.
Navarrete, Donald R. Rose and Gerard L. Vincent.*
10.33 -- Overhead and Administrative Services Agreement dated August 27, 1996 between
LCC International, Inc. and Telcom Ventures, L.L.C.*
10.34 -- Agreement of Merger dated September 15, 1996 between LCC, L.L.C. and LCC
International, Inc.*
10.35 -- Form of LCC International, Inc. Directors Stock Option Plan stock option
agreement for directors who will receive Class B Common Stock.*
10.36 -- Amended and Restated Securityholders Agreement dated July 25, 1996 among Telcom
Ventures, L.L.C., LCC, Incorporated, TC Group, L.L.C., LCC, L.L.C. and MCI
Telecommunications Corporation.*
10.37 -- Amendment to Subordinated Note due 2000 by Telcom Ventures, L.L.C. payable to
MCI Telecommunications Corporation dated July 25, 1996.*
10.38 -- Amendment to Subordinated Note due 2000 by LCC, L.L.C. payable to MCI
Telecommunications Corporation dated July 25, 1996.*
10.39 -- Form of Promissory Note by Telcom Ventures, L.L.C. to LCC International, Inc.*
10.40 -- Form of Stock Option Agreement between LCC International, Inc. and the Carlyle
Option Designees.*
10.41 -- Form of LCC International, Inc. 1996 Employee Stock Option Plan incentive stock
option agreement.*
10.42 -- Form of LCC International, Inc. 1996 Employee Stock Option Plan non-incentive
stock option agreement.*
10.43 -- Form of 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).*
10.44 -- Form of LCC International, Inc. Directors Stock Option Plan stock option
agreement for directors who will receive Class A Common Stock (other than Mark
D. Ein).*
10.45 -- Form of LCC International, Inc. Directors Stock Option Plan stock option
agreement for Mark D. Ein.*
10.46 -- Form of Phantom Membership Plan Exchange Agreement.*
10.47 -- Revolving Credit Note dated June 14, 1996 by LCC, L.L.C. to The Chase Manhattan
Bank (National Association) in the amount of $12,500,000.*
10.48 -- Term Note dated June 14, 1996 by LCC, L.L.C. to The Chase Manhattan Bank
(National Association) in the amount of $7,500,000.*
10.49 -- Letter Agreement dated August 22, 1996 between LCC International, Inc. and Arno
Penzias.*
</TABLE>
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<PAGE> 7
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ---------- ----------------------------------------------------------------------------------
<S> <C>
10.50 -- Lease Agreement dated July 17, 1992 between Colonial Village Center Associates
and Telecom Solutions, Inc., assigned to Telcom Ventures, L.L.C. by agreement
dated December 30, 1993, amended by Amendment to Lease dated June 10, 1994, and
further assigned to LCC, L.L.C. by agreement dated September , 1996.*
10.51 -- Form of Notice of Assignment of Subordinated Note Due 2000 from Telcom
Ventures, L.L.C. and LCC International, Inc. to MCI Telecommunications
Corporation.*
10.52 -- Form of Second Amendment to Subordinated Note Due 2000 by Telcom Ventures,
L.L.C. and LCC International, Inc. payable to MCI Telecommunications
Corporation.*
10.53 -- Form of Third Amendment to Subordinated Note Due 2000 by Telcom Ventures,
L.L.C. and LCC International, Inc. payable to MCI Telecommunications
Corporation.*
10.54 -- Amendment to Amended and Restated Securityholders Agreement dated September 19,
1996 among Telcom Ventures, L.L.C., LCC, Incorporated, TC Group, L.L.C., LCC,
L.L.C. and MCI Telecommunications Corporation.*
10.55 -- Series D Convertible Debenture Due March 27, 2001 by DCR Communications, Inc.
dated March 27, 1996.*
10.56 -- Series D Convertible Debenture Due May 10, 2001 by DCR Communications, Inc.
dated May 10, 1996.*
10.57 -- Form of Amended and Restated Credit Agreement dated as September , 1996 among
LCC International, Inc., LCC Design Services, L.L.C., LCC Development Company,
L.L.C., The Lenders Signatory hereto and The Chase Manhattan Bank as
Administrative Agent.
10.58 -- Form of $20 Million Revolving Credit Note of LCC, International, Inc. to The
Chase Manhattan Bank dated September , 1996.
10.59 -- Form of Subordination and Intercreditor Agreement dated as of September ,
1996 by and among The Chase Manhattan Bank, as administrative agent, MCI
Telecommunications Corporation and LCC International, Inc.
11 -- Computation of Earnings Per Common Shares.*
21 -- Subsidiaries of the Company.*
23.1 -- Consent of KPMG Peat Marwick LLP.
23.2 -- Consent of Hogan & Hartson L.L.P. (included in Exhibit 5)*
27 -- Financial Data Schedule.*
</TABLE>
- ---------------
* Previously filed in Amendment No. 1 or Amendment No. 2 to the Registration
Statement.
+ Confidential treatment has been granted for certain portions of this document.
The copy filed as an exhibit omits the information subject to the confidential
treatment request.
(b) Financial Statement Schedules.
Schedule -- Valuation and Qualifying Accounts
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the financial
statements or notes thereto.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes to provide to the Underwriters
at the closing specified in the Underwriting Agreement certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Commission such indemnification is against public
policy
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<PAGE> 8
as expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Company will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Company pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
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<PAGE> 9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company has
duly caused this Amendment No. 3 to the Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Arlington, Commonwealth of Virginia, on the 24th day of September, 1996.
LCC INTERNATIONAL, INC.
By /s/ RAJENDRA SINGH
-----------------------------------
Rajendra Singh
Chairperson of the Board of
Directors
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 3 to the Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
<C> <S> <C>
/s/ RAJENDRA SINGH Chairperson of the Board of September 24, 1996
- --------------------------------------------- Directors
Rajendra Singh
* Co-Chairperson of the Board September 24, 1996
- --------------------------------------------- of Directors and Executive
Neera Singh Vice President
* Director, President and September 24, 1996
- --------------------------------------------- Chief Executive Officer
Piyush Sodha (Principal Executive
Officer)
* Senior Vice President, September 24, 1996
- --------------------------------------------- Treasurer and Chief
Richard Hozik Financial Officer
(Principal Financial
Officer and Principal
Accounting Officer)
* Director September 24, 1996
- ---------------------------------------------
Mark D. Ein
* Director September 24, 1996
- ---------------------------------------------
Arno Penzias
</TABLE>
*By: /s/ RAJENDRA SINGH
---------------------------------
Rajendra Singh
Attorney-in-fact
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<PAGE> 10
SCHEDULE ___ - VALUATION AND QUALIFYING ACCOUNTS
(Amounts in Thousands)
<TABLE>
<CAPTION>
Column A Column B Column C Column D Column E
- ---------------------------------- ----------------- ---------------------------------- ----------- -----------
Additions
----------------------------------
Balance at Charged to Charges to Balance at
Description Beginning of Period Costs and Expenses Other Accounts Deductions(1) End of Period
------------------- ------------------ -------------- ------------- -------------
<S> <C> <C> <C> <C> <C>
Year ended December 31, 1993
Allowance for doubtful accounts 758 556 -- 231 1,083
Year ended December 31, 1994
Allowance for doubtful accounts 1,083 2,083 -- 370 2,796
Year ended December 31, 1995
Allowance for doubtful accounts 2,796 622 -- 287 3,131
</TABLE>
- ----------------
(1) Deduction for write-off of receivables to allowance account.
<PAGE> 11
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGES
- ------ ------------------------------------------------------------------------- ------------
<C> <S> <C>
1 -- Form of Underwriting Agreement.* .....................................
3.1 -- Restated Certificate of Incorporation of the Company.* ...............
3.2 -- Amended and Restated Bylaws of the Company.* .........................
4.1 -- Form of Class A and Class B Common Stock certificates.* ..............
5 -- Opinion regarding legality of shares being registered.* ..............
10.1 -- Lease Agreement dated July 23, 1990 between LCC, Incorporated and
Second Courthouse Plaza Association Limited Partnership, assigned to
Telcom Ventures, L.L.C. by agreement dated December 31, 1993, and
further assigned to LCC, L.L.C. by agreement dated May 25, 1995, and
Lease Extension Agreement thereto, dated March 19, 1996.* ............
10.2 -- Employment Agreement dated September 14, 1990 between LCC,
Incorporated and Piyush Sodha.*.......................................
10.3 -- Lease Agreement dated January 28, 1991 between Second Courthouse Plaza
Associates Limited Partnership and LCC, Incorporated and Lease
Extension Agreement thereto, dated March 19, 1996.*...................
10.4 -- Assignment of Lease and Landlord's Consent to Assignment dated
December 31, 1993 by and between Second Courthouse Plaza Associates
Limited Partnership, LCC, Incorporated and Telcom Ventures, L.L.C., as
further assigned to LCC, L.L.C. by agreement dated May 25, 1995.* ....
10.5 -- Lease Extension Agreement dated December 31, 1993 by and among Second
Courthouse Plaza Associates Limited Partnership and Telcom Ventures,
L.L.C.*...............................................................
10.6 -- 1994 LCC, L.L.C. Incentive Compensation Plan.*........................
10.7 -- Sublease Agreement dated May 7, 1994 between LCC, L.L.C. and
Minirth-Meier Byrd Clinic, P.A.*......................................
10.8 -- Lease Agreement dated May 9, 1994 between Colonial Village Center
Associates and LCC, L.L.C. and First Amendment thereto, dated May 1,
1995.*................................................................
10.9 -- Subordinated Note due 2000 by Telcom Ventures, L.L.C. payable to MCI
Telecommunications Corporation dated June 28, 1994.*..................
10.10 -- Subordinated Note due 2000 by LCC, L.L.C. payable to MCI
Telecommunications Corporation dated June 28, 1994.*..................
+10.11 -- Agreement dated November 15, 1994 by and between LCC, L.L.C. and
Pacific Bell Mobile Services.* .......................................
+10.12 -- Amended and Restated Software License and Services Agreement dated
July 1, 1995 by and between TSI, a division of LCC, L.L.C. and NEXTEL
Communications, Inc.* ................................................
10.13 -- LCC International, Inc. 1996 Directors Stock Option Plan.* ...........
10.14 -- LCC International, Inc. 1996 Employee Stock Option Plan.* ............
10.15 -- LCC International, Inc. 1996 Employee Stock Purchase Plan.* ..........
10.16 -- Amended and Restated Shareholders' Rights Agreement dated February ,
1996 between NextWave Telecom Inc. and LCC, L.L.C.*...................
10.17 -- Letter Agreement dated March , 1996 between NextWave Telecom, Inc.
and LCC, L.L.C.*......................................................
</TABLE>
<PAGE> 12
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGES
- ------ ------------------------------------------------------------------------- ------------
<C> <S> <C>
+10.18 -- Letter Agreement dated March 12, 1996 between NextWave Telecom, Inc.
and LCC, L.L.C.* .....................................................
10.19 -- Subscription Agreement dated March , 1996 between NextWave Telecom,
Inc. and LCC, L.L.C.*.................................................
10.20 -- Office Building Lease dated March 19, 1996 between Second Courthouse
Associates Limited Partnership and LCC, L.L.C.*.......................
10.21 -- Convertible Loan and Investment Agreement dated March 20, 1996 by and
between LCC, L.L.C. and DCR Communications, Inc.*.....................
+10.22 -- Letter Agreement dated March 20, 1996 by and between LCC, L.L.C. and
DCR Communications, Inc.* ............................................
10.23 -- Agreement dated May 17, 1996, between LCC, L.L.C. and West*Park
Associates Limited Partnership for office space at 7925 Jones Branch
Drive, McLean, Virginia, 22102.*......................................
10.24 -- Agreement dated May 17, 1996, between LCC, L.L.C. and West*Park
Associates Limited Partnership for office space at 7927 Jones Branch
Drive, McLean, Virginia, 22102.*......................................
10.25 -- Letter Agreement dated May 31, 1996 between LCC International, Inc.
and Arno Penzias.*....................................................
10.26 -- Credit Agreement dated June 14, 1996 among LCC, L.L.C., LCC Design
Services, L.L.C., LCC Development Company, L.L.C. and The Chase
Manhattan Bank (National Association).*...............................
10.27 -- Security Agreement dated June 14, 1996 among LCC, L.L.C., LCC Design
Services, L.L.C. and LCC Development Company, L.L.C., in favor of The
Chase Manhattan Bank (National Association).*.........................
10.28 -- Intellectual Property Security Agreement dated June 14, 1996 by LCC,
L.L.C. in favor of The Chase Manhattan Bank (National
Association).*........................................................
10.29 -- Pledge Agreement dated June 14, 1996 among LCC, L.L.C., LCC Design
Services, L.L.C. and LCC Development Company, L.L.C., in favor of The
Chase Manhattan Bank (National Association).*.........................
10.30 -- Intercompany Agreement dated as of August 27, 1996 among Telcom
Ventures, L.L.C., LCC, L.L.C., LCC International, Inc., Cherrywood
Holdings, Inc., Rajendra Singh, Neera Singh, 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.* ........
10.31 -- Registration Rights Agreement dated July 25, 1996 among LCC
International, Inc., RF Investors, L.L.C. and MCI Telecommunications
Corporation.*.........................................................
10.32 -- Form of Indemnity Agreement between LCC International, Inc. and each
of Rajendra Singh, Neera Singh, Piyush Sodha, Mark D. Ein, Arno A.
Penzias, J. Michael Bonin, Kathryn M. Condello, Peter A. Deliso,
Richard Hozik, Frank F. Navarrete, Donald R. Rose and Gerard L.
Vincent.* ............................................................
10.33 -- Overhead and Administrative Services Agreement dated August 27, 1996
between LCC International, Inc. and Telcom Ventures, L.L.C.* .........
10.34 -- Agreement of Merger dated September 15, 1996 between LCC, L.L.C. and
LCC International, Inc.* .............................................
</TABLE>
<PAGE> 13
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGES
- ------ ------------------------------------------------------------------------- ------------
<C> <S> <C>
10.35 -- Form of LCC International, Inc. Directors Stock Option Plan stock
option agreement for directors who will receive Class B Common
Stock.* ..............................................................
10.36 -- Amended and Restated Securityholders Agreement dated July 25, 1996
among Telcom Ventures, L.L.C., LCC, Incorporated, TC Group, L.L.C.,
LCC, L.L.C. and MCI Telecommunications Corporation.*..................
10.37 -- Amendment to Subordinated Note due 2000 by Telcom Ventures, L.L.C.
payable to MCI Telecommunications Corporation dated July 25, 1996.*...
10.38 -- Amendment to Subordinated Note due 2000 by LCC, L.L.C. payable to MCI
Telecommunications Corporation dated July 25, 1996.*..................
10.39 -- Form of Promissory Note by Telcom Ventures, L.L.C. to LCC
International, Inc.* .................................................
10.40 -- Form of Stock Option Agreement between LCC International, Inc. and the
Carlyle Option Designees.* ...........................................
10.41 -- Form of LCC International, Inc. 1996 Employee Stock Option Plan
incentive stock option agreement.* ...................................
10.42 -- Form of LCC International, Inc. 1996 Employee Stock Option Plan
non-incentive stock option agreement.* ...............................
10.43 -- Form of 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).* .................
10.44 -- Form of LCC International, Inc. Directors Stock Option Plan stock
option agreement for directors who will receive Class A Common Stock
(other than Mark D. Ein).* ...........................................
10.45 -- Form of LCC International, Inc. Directors Stock Option Plan stock
option agreement for Mark D. Ein.* ...................................
10.46 -- Form of Phantom Membership Plan Exchange Agreement.* .................
10.47 -- Revolving Credit Note dated June 14, 1996 by LCC, L.L.C. to The Chase
Manhattan Bank (National Association) in the amount of
$12,500,000.* ........................................................
10.48 -- Term Note dated June 14, 1996 by LCC, L.L.C. to The Chase Manhattan
Bank (National Association) in the amount of $7,500,000.* ............
10.49 -- Letter Agreement dated August 22, 1996 between LCC International, Inc.
and Arno Penzias.* ...................................................
10.50 -- Lease Agreement dated July 17, 1992 between Colonial Village Center
Associates and Telecom Solutions, Inc., assigned to Telcom Ventures,
L.L.C. by agreement dated December 30, 1993, amended by Amendment to
Lease dated June 10, 1994, and further assigned to LCC, L.L.C. by
agreement dated September , 1996.* .................................
10.51 -- Form of Notice of Assignment of Subordinated Note Due 2000 from Telcom
Ventures, L.L.C. and LCC International, Inc. to MCI Telecommunications
Corporation.* ........................................................
10.52 -- Form of Second Amendment to Subordinated Note Due 2000 by Telcom
Ventures, L.L.C. and LCC International, Inc. payable to MCI
Telecommunications Corporation.* .....................................
</TABLE>
<PAGE> 14
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGES
- ------ ------------------------------------------------------------------------- ------------
<C> <S> <C>
10.53 -- Form of Third Amendment to Subordinated Note Due 2000 by Telcom
Ventures, L.L.C. and LCC International, Inc. payable to MCI
Telecommunications Corporation.* .....................................
10.54 -- Amendment to Amended and Restated Securityholders Agreement dated
September 19, 1996 among Telcom Ventures, L.L.C., LCC, Incorporated,
TC Group, L.L.C., LCC, L.L.C. and MCI Telecommunications
Corporation.* ........................................................
10.55 -- Series D Convertible Debenture Due March 27, 2001 by DCR
Communications, Inc. dated March 27, 1996.* ..........................
10.56 -- Series D Convertible Debenture Due May 10, 2001 by DCR Communications,
Inc. dated May 10, 1996.* ............................................
10.57 -- Form of Amended and Restated Credit Agreement dated as September ,
1996 among LCC International, Inc., LCC Design Services, L.L.C., LCC
Development Company, L.L.C., The Lenders Signatory hereto and The
Chase Manhattan Bank as Administrative Agent.
10.58 -- Form of $20 Million Revolving Credit Note of LCC, International, Inc.
to The Chase Manhattan Bank dated September , 1996.
10.59 -- Form of Subordination and Intercreditor Agreement dated as of
September , 1996 by and among The Chase Manhattan Bank, as
administrative agent, MCI Telecommunications Corporation and LCC
International, Inc.
11 -- Computation of Earnings Per Common Shares.*...........................
21 -- Subsidiaries of the Company.*.........................................
23.1 -- Consent of KPMG Peat Marwick LLP. ....................................
23.2 -- Consent of Hogan & Hartson L.L.P. (included in Exhibit 5).*...........
27 -- Financial Data Schedule.*.............................................
</TABLE>
- ---------------
* Previously filed in Amendment No. 1 or Amendment No. 2 to the Registration
Statement.
+ Confidential treatment has been granted for certain portions of this document.
The copy filed as an exhibit omits the information subject to the confidential
treatment request.
(b) Financial Statement Schedules.
Schedule -- Valuation and Qualifying Accounts
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the financial
statements or notes thereto.
<PAGE> 1
EXHIBIT 10.57
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September , 1996
among
LCC INTERNATIONAL, INC.
LCC DESIGN SERVICES, L.L.C.
LCC DEVELOPMENT COMPANY, L.L.C.
THE LENDERS SIGNATORY HERETO
and
THE CHASE MANHATTAN BANK
as Administrative Agent
<PAGE> 2
Table of Contents
<TABLE>
<S> <C>
ARTICLE 1. DEFINITIONS; ACCOUNTING TERMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
-----------
Section 1.02. Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
----------------
ARTICLE 2. THE CREDIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.01. Revolving Credit Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
----------------------
Section 2.02. The Revolving Credit Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
--------------------------
Section 2.03. Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
-------
Section 2.04. Borrowing Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
--------------------
Section 2.05. Optional Prepayments and Conversions . . . . . . . . . . . . . . . . . . . . . . . . 21
------------------------------------
Section 2.06. Interest Periods; Renewals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
--------------------------
Section 2.07. Changes of Revolving Credit Commitments . . . . . . . . . . . . . . . . . . . . . . . 22
---------------------------------------
Section 2.08. Certain Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
---------------
Section 2.09. Minimum Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
---------------
Section 2.10. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
--------
Section 2.11. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
----
Section 2.12. Payments Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
------------------
ARTICLE 3. THE LETTERS OF CREDIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.01. Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
-----------------
Section 3.02. Purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
--------
Section 3.03. Procedures for Issuance of Letters of Credit . . . . . . . . . . . . . . . . . . . . 25
--------------------------------------------
Section 3.04. Participating Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
-----------------------
Section 3.05. Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
--------
Section 3.06. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
------------------
Section 3.07. Obligations Absolute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
--------------------
Section 3.08. Cash Collateral Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
-----------------------
Section 3.09. Letter of Credit Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
---------------------
ARTICLE 4. YIELD PROTECTION; ILLEGALITY; ETC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 4.01. Additional Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
----------------
Section 4.02. Limitation on Fixed Rate Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
------------------------------
Section 4.03. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
----------
Section 4.04. Certain Conversions Pursuant to Sections 4.01 and 4.03 . . . . . . . . . . . . . . . 31
------------------------------------------------------
Section 4.05. Certain Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
--------------------
ARTICLE 5. CONDITIONS PRECEDENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 5.01. Documentary Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . 32
--------------------------------
Section 5.02. Additional Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . 34
-------------------------------
Section 5.03. Deemed Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
----------------------
ARTICLE 6. REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
Section 6.01. Organization, Good Standing and Due Qualification . . . . . . . . . . . . . . . . . . 35
-------------------------------------------------
Section 6.02. Power and Authority; No Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . 35
---------------------------------
Section 6.03. Legally Enforceable Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
------------------------------
Section 6.04. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
----------
Section 6.05. Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
--------------------
Section 6.06. Ownership and Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
-------------------
Section 6.07. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
-----
Section 6.08. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
-----
Section 6.09. Subsidiaries and Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
---------------------------
Section 6.10. Credit Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
-------------------
Section 6.11. Material Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
------------------
Section 6.12. Proprietary Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
------------------
Section 6.13. Hazardous Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
-------------------
Section 6.14. No Default on Outstanding Judgments or Orders . . . . . . . . . . . . . . . . . . . . 40
---------------------------------------------
Section 6.15. No Defaults on Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
-------------------------------
Section 6.16. Labor Disputes and Acts of God . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
------------------------------
Section 6.17. Governmental Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
-----------------------
Section 6.18. No Forfeiture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
-------------
Section 6.19. Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
--------
Section 6.20. Merger Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
----------------
Section 6.21. MCI Note Purchase Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
---------------------------
Section 6.22. NextWave Investment Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
-----------------------------
Section 6.23. Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
------------------
Section 6.24. Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
-----------
Section 6.25. Merger of Old LCC into the Borrower . . . . . . . . . . . . . . . . . . . . . . . . . 43
-----------------------------------
ARTICLE 7. AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 7.01. Maintenance of Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
------------------------
Section 7.02. Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
-------------------
Section 7.03. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
-------------------------
Section 7.04. Maintenance of Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
----------------------
Section 7.05. Maintenance of Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
------------------------
Section 7.06. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
--------------------
Section 7.07. Right of Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
-------------------
Section 7.08. Reporting Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
----------------------
Section 7.09. Additional Guarantors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
---------------------
Section 7.10. After Acquired Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
----------------------------
ARTICLE 8. NEGATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 8.01. Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
----
Section 8.02. Guaranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
----------
Section 8.03. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
-----
Section 8.04. Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
------
Section 8.05. Sale and Leaseback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
------------------
Section 8.06. Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
-----------
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
Section 8.07. Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
-------------------
Section 8.08. Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
--------------
Section 8.09. Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
----------------------------
Section 8.10. Mergers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
-------
Section 8.11. Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
------------
Section 8.12. No Activities Leading to Forfeiture . . . . . . . . . . . . . . . . . . . . . . . . . 53
-----------------------------------
Section 8.13. Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
--------------------
Section 8.14. Amendments or Waivers of Certain Documents . . . . . . . . . . . . . . . . . . . . . 53
------------------------------------------
Section 8.15. Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
------------
ARTICLE 9. FINANCIAL COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 9.01. Fixed Charge Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
---------------------------
Section 9.02. Minimum Tangible Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
--------------------------
Section 9.03. Current Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
-------------
Section 9.04. Cash Flow Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
------------------------
ARTICLE 10. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 10.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
-----------------
Section 10.02. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
--------
ARTICLE 11. UNCONDITIONAL GUARANTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 11.01. Guarantied Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
----------------------
Section 11.02. Performance Under This Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 58
--------------------------------
Section 11.03. Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
-------
Section 11.04. Releases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
--------
Section 11.05. Marshaling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
----------
Section 11.06. Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
---------
Section 11.07. Unconditional Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
------------------------
Section 11.08. Election to Perform Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . 61
-------------------------------
Section 11.09. No Election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
-----------
Section 11.10. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
------------
Section 11.11. Other Enforcement Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
------------------------
Section 11.12. Delay or Omission; No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
----------------------------
Section 11.13. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . 62
----------------------------------
Section 11.14. Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
-------------------
Section 11.15. Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
--------
Section 11.16. No Setoff, Counterclaim or Withholding; Gross-Up . . . . . . . . . . . . . . . . . . 63
------------------------------------------------
ARTICLE 12. THE ADMINISTRATIVE AGENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 12.01. Appointment, Powers and Immunities of Administrative Agent . . . . . . . . . . . . . 63
----------------------------------------------------------
Section 12.02. Reliance by Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 64
--------------------------------
Section 12.03. Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
--------
Section 12.04. Rights of Administrative Agent as a Lender . . . . . . . . . . . . . . . . . . . . . 64
------------------------------------------
Section 12.05. Indemnification of Administrative Agent . . . . . . . . . . . . . . . . . . . . . . 65
---------------------------------------
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C>
Section 12.06. Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
---------
Section 12.07. Non-Reliance on Administrative Agent and Other Lenders . . . . . . . . . . . . . . . 65
------------------------------------------------------
Section 12.08. Failure of Administrative Agent to Act . . . . . . . . . . . . . . . . . . . . . . . 66
--------------------------------------
Section 12.09. Resignation or Removal of Administrative Agent . . . . . . . . . . . . . . . . . . . 66
----------------------------------------------
Section 12.10. Amendments Concerning Agency Function . . . . . . . . . . . . . . . . . . . . . . . 67
-------------------------------------
Section 12.11. Liability of Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . 67
---------------------------------
Section 12.12. Transfer of Agency Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
---------------------------
Section 12.13. Non-Receipt of Funds by the Administrative Agent . . . . . . . . . . . . . . . . . . 67
------------------------------------------------
Section 12.14. Withholding Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
-----------------
Section 12.15. Several Obligations and Rights of Lenders . . . . . . . . . . . . . . . . . . . . . 68
-----------------------------------------
Section 12.16. Pro Rata Treatment of Revolving Credit Loans, Etc . . . . . . . . . . . . . . . . . 68
-------------------------------------------------
Section 12.17. Sharing of Payments Among Lenders . . . . . . . . . . . . . . . . . . . . . . . . . 68
---------------------------------
Section 12.18. Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
------------------
Section 12.19. Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
----------
Section 12.20. Amendment of Article 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
-----------------------
ARTICLE 13. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 13.01. Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
----------------------
Section 13.02. Usury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
-----
Section 13.03. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
--------
Section 13.04. Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
--------
Section 13.05. Assignment; Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
--------------------------
Section 13.06. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
-------
Section 13.07. Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
------
Section 13.08. JURISDICTION; IMMUNITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 13.09. Table of Contents; Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
---------------------------
Section 13.10. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
------------
Section 13.11. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
------------
Section 13.12. Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
-----------
Section 13.13. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 13.14. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
---------------
Section 13.15. Treatment of Certain Information . . . . . . . . . . . . . . . . . . . . . . . . . . 75
--------------------------------
Section 13.16. Reaffirmation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
-------------
Section 13.17. Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
-------
Section 13.18. Revised Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
-----------------
</TABLE>
iv
<PAGE> 6
EXHIBITS
<TABLE>
<S> <C>
Exhibit A Revolving Credit Note
Exhibit B Form of Compliance Certificate
Exhibit C Opinion of Counsel to the LCC
Consolidated Entities
Exhibit D Subordination Agreement
SCHEDULES
Schedule 6.01 Organization, Good Standing and Due Qualification
Schedule 6.04 Litigation
Schedule 6.07 Taxes
Schedule 6.08 ERISA
Schedule 6.09 Subsidiaries and Affiliates
Schedule 6.10 Credit Arrangements
Schedule 6.11 Material Contracts
Schedule 6.12 Proprietary Rights
Schedule 6.16 Labor Disputes and Acts of God
Schedule A Schedule A to the Security Agreement
Schedule B Schedule A to the Pledge Agreement
</TABLE>
v
<PAGE> 7
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of September , 1996
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 DESIGN SERVICES, L.L.C., a limited liability
company organized under the laws of Delaware, and LCC DEVELOPMENT COMPANY,
L.L.C., a limited liability company organized under the laws of Delaware (each
of the foregoing entities, 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,
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 Guarantors, the Lenders and the
Administrative Agent have entered into that certain Credit Agreement dated as
of June 14, 1996 (as amended, the "Existing Credit Agreement"), pursuant to
which the Lenders have extended credit to the Borrower in the aggregate amount
of $20,000,000 evidenced by certain Promissory Notes (the "Existing Notes")
issued by the Borrower and guarantied by the Subsidiary Guarantors and the
Parent;
WHEREAS, the Borrower, the Subsidiary Guarantors, the Lenders and the
Administrative Agent have entered into this Agreement to refund and refinance
the Existing Notes issued under the Existing Credit Agreement and to provide
for, among other things, modifications of certain covenants and definitions;
and
WHEREAS, the Obligors have requested that the Lenders make loans to
the 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 2. DEFINITIONS; ACCOUNTING TERMS.
Section 1.21. 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):
1
<PAGE> 8
"Acceptable Acquisition" means any Acquisition which meets all of the
following conditions: (a) the aggregate consideration paid for such Acquisition
and for all prior Acquisitions during the same Fiscal Year does not exceed
$5,000,000; (b) such Acquisition relates to the Business and, if required by
the organizational documents of the Person making such Acquisition, has been
approved in good faith by the Board of Directors or the Members Committee of
such Person; (c) no Default or Event of Default exists or would exist after
giving effect to such Acquisition; and (d) after reviewing historical financial
statements of the business being acquired and considering the pro forma
position of the LCC Consolidated Entities subsequent to such Acquisition, the
Borrower believes in good faith that the LCC Consolidated Entities will
continue to be in compliance with the financial covenants contained in Article
9 on a pro forma basis.
"Acceptable Investment" means any Investment which meets all of the
following conditions: (a) the aggregate consideration paid for such Investment
and for all prior Investments during the same Fiscal Year does not exceed
$1,000,000 (exclusive of Investments otherwise permitted under Section 8.06);
(b) such Investment relates to the Business and, if required by the
organizational documents of the Person making such Investment, has been
approved in good faith by the Board of Directors or the Members Committee of
such Person; (c) no Default or Event of Default exists or would exist after
giving effect to such Investment; and (d) after reviewing historical financial
statements of the business being invested in and considering the pro forma
position of the LCC Consolidated Entities subsequent to such Investment, the
Borrower believes in good faith that the LCC Consolidated Entities will
continue to be in compliance with the financial covenants contained in Article
9 on a pro forma basis.
"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.
2
<PAGE> 9
"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 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.
"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 Existing Credit Agreement delivered under Section 7.09.
"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 deposits are also carried out in the London
interbank market.
"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 and (v) any other business functionally
interrelated with or incidental to any of the foregoing.
"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
3
<PAGE> 10
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 Flow Leverage Ratio" means, at any date of determination
thereof, the ratio of (a) Consolidated Debt to (b) Consolidated EBITDA for the
four most recently ended Fiscal Quarters.
"Chase" shall have the meaning assigned to such term in the recitals
hereof.
"Closing Date" means the date upon which the initial borrowing or
initial issuance of a Letter of Credit hereunder occurs.
"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.
"Compliance Certificate" means the compliance certificate in the form
of EXHIBIT B 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 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.
4
<PAGE> 11
"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 Revolving Credit Notes), 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 and 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 Fixed Charges" means, with respect to any fiscal period,
the sum of (a) Consolidated Interest Expense accrued during such period, plus
(b) Consolidated Principal Payments due during such period, plus (c)
Consolidated Income Tax Expense accrued during 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 Intangible Assets" means, at any date of determination
thereof, all assets of the LCC Consolidated Entities which would be classified
as intangibles under GAAP including, without limitation, unamortized debt
discount and expense, unamortized acquisition, organization and reorganization
expense, unamortized research and development costs, patents, copyrights,
trademarks, trade names, franchises, goodwill and other similar intangible
assets, 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
5
<PAGE> 12
exchange for the forbearance from the collection of money during such period,
as determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any fiscal period,
net income of the LCC Consolidated Entities for such period, as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Worth" means, at any date of determination thereof,
all amounts which would be included under stockholders' equity on a
consolidated balance sheet of the LCC Consolidated Entities, as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Principal Payments" means, with respect to any fiscal
period, all principal due on Consolidated Debt during such period (including,
without limitation, imputed principal on Capital Leases), 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 Subordinated Debt" means, at any date of determination
thereof, the Debt under the MCI Subordinated Notes 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 Tangible Net Worth" means, at any date of determination
thereof, the result of (a) the sum of (i) Consolidated Net Worth plus (ii)
Consolidated Subordinated Debt minus (b) Consolidated Intangible Assets.
"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.
"DCR" means DCR Communications, Inc., a Maryland corporation.
"DCR Debentures" means the Series D Debentures in the principal amount
of $6,500,000 issued by DCR to Old LCC pursuant to the DCR Investment
Agreement, as amended or supplemented from time to time.
6
<PAGE> 13
"DCR Investment Agreement" means the Convertible Loan and Investment
Agreement dated as of March 20, 1996 between Old LCC and DCR, as amended by
that certain First Amendment to Convertible Loan and Investment Agreement dated
May 10, 1996 and as further amended or supplemented from time to time.
"DCR Investment Documents" means (a) the DCR Investment Agreement, (b)
the DCR Debentures, (c) the Services Agreement dated as of March 20, 1996
between DCR and Old LCC, (d) the Software License Agreement dated as of March
20, 1996 between DCR and Old LCC, (e) the Articles of Incorporation of DCR, (f)
the By-Laws of DCR, (g) the Stockholders Agreement dated January 20, 1995 among
each of the holders of DCR's Class A Common Stock and (h) the other agreements
and instruments to be executed pursuant to the terms of each of such DCR
Investment Documents as each may be amended or supplemented from time to time.
"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 Revolving
Credit Loan and, to the extent permitted by law, any other amount payable by
any Obligor under this Agreement, any Revolving Credit 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 Interest Margin (if any); provided that, if the amount so
in default is principal of a Fixed 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 Revolving Credit Loan
7
<PAGE> 14
as provided in Section 2.11 and, thereafter, the rate provided for above in
this definition.
"Dollars" and the sign "$" mean lawful money of the United States of
America.
"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 Moody's 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.
"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
8
<PAGE> 15
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.
"Existing Notes" shall have the meaning assigned to such term in the
recitals hereof.
"Facility Documents" means this Agreement, the Revolving Credit Notes,
the Letters of Credit, the Assumption Agreements, the Interest Rate Protection
Agreements, the Currency Protection Agreements, the 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) if such Fiscal Quarter ends after December 31, 1996,
the greater of (i) Zero Dollars ($0) and (ii) 50% of Consolidated Net Income
for such Fiscal Quarter plus (b) subsequent to the Initial Public Offering, 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 from the incurrence
of Consolidated Subordinated Debt during such Fiscal Quarter.
"Fiscal Year" means any calendar year.
"Fixed Base Rate" means with respect to any Interest Period for a
Fixed 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 deposits in immediately
available funds, for a period, and in an amount, comparable to the Interest
Period and principal amount of the Fixed Rate Loan which shall be made.
9
<PAGE> 16
"Fixed Charge Coverage Ratio" means, at any date of determination
thereof, the ratio of (a) the result of (i) Consolidated EBITDA for the four
most recently ended Fiscal Quarters minus (ii) Consolidated Capital
Expenditures for such four most recently ended Fiscal Quarters to (b)
Consolidated Fixed Charges for such four most recently ended Fiscal Quarters;
provided that if such date is on or before March 31, 1997, all references to
the four most recently ended Fiscal Quarters shall be to the fiscal period
beginning on July 1, 1996 and ending on such date.
"Fixed Rate" means, for any Fixed 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 Fixed Base Rate for such Fixed Rate Loan for
such Interest Period, divided by (ii) one minus the Reserve Requirement for
such Fixed Rate Loan for such Interest Period.
"Fixed Rate Loan" means any Revolving Credit Loan when and to the
extent the interest rate therefor is determined on the basis of the definition
"Fixed Rate."
"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).
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"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.
"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.
"Initial Public Offering" means the initial public offering of the
Capital Stock of the Borrower.
"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.
"Intercompany Agreement" means the Intercompany Agreement dated as of
September 20, 1996 among the Parent, RF Investors, Old LCC, the Borrower,
Cherrywood Holdings, Inc., Rajendra Singh, Neera Singh, The Hersh Raj Singh
Education Trust, The Samir Raj Singh Education Trust, 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.
"Interest Margin" means, for each type of Revolving Credit Loan, (a)
if such Revolving Credit Loan is a Variable Rate Loan, 0.00% per annum or (b)
if such Revolving Credit Loan is a Fixed Rate Loan, 1.25% per annum.
"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
may select pursuant to Section 2.07, on the numerically corresponding day in
the first, second, third, or sixth calendar month thereafter, provided that
each such Interest Period 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
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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.
"Koll" means Koll Telecommunications Services, L.L.C., a Delaware
limited liability company.
"LCC Consolidated Entities" means the Borrower and the Subsidiaries of
the Borrower.
"LCC Predecessor Entities" means LCC, Incorporated, LCC International
Corporation, Eurofon Incorporated, Eurofon Incorp. & Co. KG and Eurofon of
France S.A.R.L. and Telecom Solutions, Incorporated.
"Lender" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"Lending Office" means, for each Lender and for each type of Revolving
Credit Loan, the lending office of such Lender (or of an affiliate of such
Lender) designated as such for such type of Revolving Credit 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 as the office by which its Revolving
Credit 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.
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"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.
"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.
"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%
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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 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 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.
"MCI Subordinated Guaranty" means the Guaranty dated June 27, 1994 by
the Borrower in favor of MCI pursuant to which Old LCC guarantied the
obligations of the Parent under the MCI Subordinated Telcom Note.
"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.
"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 ,
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1996 among the Parent, Old LCC and MCI and as further amended by the Third
Amendment to Subordinated Note due 2000 dated as of September , 1996 among
the Parent, Old LCC and MCI.
"Merger" means the merger of Old LCC with and into the Borrower, with
the Borrower being the surviving entity.
"Merger Agreement" means the Agreement of Merger dated as of September
15, 1996 between Old LCC and the Borrower.
"Microcell" means Microcell Management, L.L.C., a Maryland limited
liability company.
"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.
"NextWave" means NextWave Telecom Inc., a Delaware corporation.
"NextWave Investment Agreement" means the Subscription Agreement dated
as of March 12, 1996 between NextWave and Old LCC, as amended or supplemented
from time to time.
"NextWave Investment Documents" means (a) the NextWave Investment
Agreement, (b) the NextWave Series B Common Stock Warrant dated March 12, 1996,
(c) the Services Agreement dated as of March 12, 1996 between NextWave and Old
LCC, (d) the Letter Agreement dated as of March 12, 1996 between NextWave and
Old LCC, (e) the Restated Certificate of Incorporation of NextWave, (f) the
By-Laws of NextWave, (g) the Amended and Restated Shareholders' Rights
Agreement dated as of February 1996 among NextWave and each of the holders of
its Series A Common Stock, its Series B Common Stock and its Series C Common
Stock, (h) the Amended and Restated Stockholders' Voting Agreement dated as of
February 1996 among NextWave and each of the holders of its Series A Common
Stock, its Series B Common Stock and its Series C Common Stock, (i) the Amended
and Restated Escrow Agreement dated as of January 1996 among NextWave, certain
investors in NextWave and Chemical Bank, as Escrow Agent, (j) the Confidential
Private Placement Memorandum dated December 1995 of NextWave and (k) the other
agreements and instruments to be executed pursuant to the terms of each such
NextWave Investment Document, as each may be amended or supplemented from time
to time.
"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 Revolving
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Credit 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 Revolving
Credit 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 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.
"Parent Guaranty" means the Unconditional Guaranty dated as of June
14, 1996 delivered by the Parent in favor of the Administrative Agent.
"Parent Pledge Agreement" means the Pledge Agreement dated as of June
14, 1996 between the Parent and the Agent.
"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.
"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.
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"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 1 Chase Manhattan Plaza, New York, New York 10081.
"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 sue
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).
"Purchase Money Lien" 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
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holding such Property or a Lien incurred in connection with any conditional
sale or other title retention agreement or a Capital Lease.
"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
interbank market, such successor leading bank in the London 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
Revolving Credit 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
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
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liabilities which includes deposits by reference to which the Fixed Base Rate
for Fixed Rate Loans is to be determined as provided in the definition of
"Fixed 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 the MCI Subordinated Notes.
"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.
"Revolving Credit Notes" means the promissory notes issued by the
Borrower in the form of EXHIBIT A 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 September 24, 1999.
"Securities Act" means the Securities Act of 1933, as amended.
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"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 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.
"Subordination Agreement" means the Subordination and Intercreditor
Agreement in the form of EXHIBIT D to be delivered by MCI under the terms of
this Agreement, as may be amended or supplemented from time to time.
"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 Guarantors" shall have the meaning assigned to such term
in the introductory paragraph hereof.
"`type' of Revolving Credit Loans" shall have the meaning assigned to
such term in Section 2.01(b).
"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.
"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
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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.
Section 1.22. 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 3. THE CREDIT.
Section 1.31. Revolving Credit 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) The Revolving Credit Loans may be outstanding at the
Borrower's option as Variable Rate Loans or Fixed Rate Loans (each a "type" of
Revolving Credit Loans). Each type of Revolving Credit Loans of each Lender
shall be made and maintained at such Lender's Lending Office for such type of
Revolving Credit Loans.
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Section 1.32. The Revolving Credit 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 A, dated the Closing Date, duly completed and
executed by the Borrower.
Section 1.33. Purpose. The Borrower shall use the proceeds of the
Revolving Credit Loans for general corporate purposes including, without
limitation, working capital, Acceptable Investments and Acceptable
Acquisitions. 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 1.34. Borrowing Procedures. The Borrower 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
Revolving Credit 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, in immediately available funds, on the date
specified for such borrowing in the Borrower's notice, by the Administrative
Agent by crediting an account of the Borrower designated by the Borrower and
maintained with the Administrative Agent at the Principal Office.
Section 1.35. Optional Prepayments and Conversions. The Borrower
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, at any time or from time to time; provided that: (a)
the Borrower shall give the Administrative Agent notice of each such prepayment
or conversion as provided in Section 2.08; 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 agrees to provide to the Administrative Agent
for the account of each Lender compensation in accordance with Section 4.05.
Section 1.36. Interest Periods; Renewals. (a) In the case of each
Fixed Rate Loan, the Borrower shall 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
Revolving Credit Termination Date; (ii) notwithstanding clause (i) above, no
Interest Period shall have a duration less than one month, 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
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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 2.08, the Borrower may renew any Fixed Rate Loan on the last day of
the Interest Period therefor as the same type of Revolving Credit Loan with an
Interest Period of the same or different duration in accordance with the
limitations provided above. If the Borrower shall fail to give notice to the
Administrative Agent of such a renewal, such Fixed Rate Loan shall
automatically become a Variable Rate Loan on the last day of the current
Interest Period.
Section 1.37. Changes of Revolving Credit Commitments. The Borrower
shall have the right to reduce or terminate the amount of unused Revolving
Credit Commitments at any time or from time to time, provided that: (i) the
Borrower shall give notice of each such reduction or termination to the
Administrative Agent as provided in Section 2.08; and (ii) each partial
reduction shall be in an aggregate amount at least equal to $1,000,000. The
Revolving Credit Commitments once reduced or terminated may not be reinstated.
Section 1.38. Certain Notices. Notices by the Borrower 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 2.06, and each reduction or termination of the Revolving Credit
Commitments pursuant to Section 2.07 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 Revolving Credit Commitments, given three Banking Days prior
thereto. Each such notice shall specify the type of the Revolving Credit Loans
to be borrowed, prepaid, converted or renewed and the amount thereof (subject
to Section 2.10) (and, in the case of a conversion, the type of Revolving
Credit 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 Revolving Credit
Commitments to be reduced or terminated. The Administrative Agent shall
promptly notify the Lenders of the contents of each such notice.
Section 1.39. Minimum Amounts. Except for borrowings which exhaust
the full remaining amount of the Revolving Credit Commitments, prepayments or
conversions which result in the prepayment or conversion of all Revolving
Credit Loans of a particular type or conversions made pursuant to Section 4.04,
each borrowing, prepayment, conversion and renewal of principal of Revolving
Credit
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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 in the aggregate for all Lenders (plus increments of $100,000 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 Revolving Credit 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 $1,000,000.
Section 3.10. Interest. (a) Interest shall accrue on the outstanding
and unpaid principal amount of each Revolving Credit Loan for the period from
and including the date of such Revolving Credit Loan to but excluding the date
such Revolving Credit 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 Interest Margin and (ii) for a Fixed Rate Loan, at a fixed rate equal
to the Fixed Rate plus the Interest Margin. If an Event of Default shall
exist, interest shall accrue on the outstanding principal amount of any
Revolving Credit Loan and any other amount payable by the Borrower hereunder,
under any Revolving Credit 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 Administrative Agent shall notify the 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 3.11. Fees. (a) The Borrower shall pay to the Administrative
Agent for the account of each Lender a commitment fee on the daily average of
the unused Revolving Credit Commitments to the Borrower of such Lender minus
such
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Lender's pro rata share of Letter of Credit Obligations for the period from and
including the date hereof to the earlier of the date all of the Revolving
Credit Commitments are terminated or the Revolving Credit Termination Date at a
rate per annum equal to 1/4 of one percent, calculated in each case on the
basis of a year of 360 days for the actual number of days elapsed. The accrued
commitment fee shall be due and payable in arrears upon any reduction or
termination of the Revolving Credit Commitments and on the fifteenth day of
each March, June, September and December, commencing on the first such date
after the Closing Date.
(b) The Borrower shall pay to the Administrative Agent
for its own account the fees set forth in the fee letter dated as of the
Closing Date between the Borrower and the Administrative Agent.
Section 3.12. Payments Generally. All payments under this Agreement,
the Revolving Credit Notes and the other Facility Documents shall be made in
Dollars 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 with the Administrative Agent or such Lender, as the case may be, and
the Administrative Agent so doing shall promptly notify the Borrower and any
Lender so doing shall promptly notify the Administrative Agent which in turn
shall promptly notify the Borrower. The Borrower shall, at the time of making
each optional payment under this Agreement, any Revolving Credit Note or any
other Facility Document, specify to the Administrative Agent the principal or
other amount payable by the Borrower under this Agreement, such Revolving
Credit 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 (subject to Section
11.16)). If the due date of any payment under this Agreement, any Revolving
Credit 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 Revolving Credit 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.
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Section 1.31. 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 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 1.32. Purposes. The Borrower shall use the Letters of Credit
for the purpose of securing obligations incurred in the ordinary course of
business.
Section 1.33. 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 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 1.34. 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
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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 1.35. 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 Interest Margin.
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
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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 1.36. 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 1.37. 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 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;
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(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.
Section 1.38. Cash Collateral Account. If the Revolving Credit
Commitments are duly terminated and all amounts owing under this Agreement, the
Revolving Credit 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 1.39. 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 rate of one and one quarter percent per annum of 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.
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(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 1.41. Additional Costs. (a) The Borrower shall pay directly
to each Lender from time to time on demand such amounts as such Lender may
determine (and reasonably 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 Revolving Credit
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 Revolving Credit 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 "Fixed Base Rate"
in Section 1.01); or (iii) imposes any other condition affecting this Agreement
or its Revolving Credit Notes (or any of such extensions of credit or
liabilities). Each Lender will notify the Borrower 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 under this Section 4.01(a), or under
Section 4.01(c), the Borrower 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 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
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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 (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
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 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 Revolving
Credit Loans hereunder, its obligation to make Revolving Credit 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 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 Revolving Credit Loans,
its obligation to make Revolving Credit 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 Revolving Credit 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 1.42. 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 "Fixed Base Rate" in Section
1.01 are not being provided in the
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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 adequately cover the cost to the Lenders of making or
maintaining such Fixed Rate Loans;
then the Administrative Agent shall give the Borrower 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
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 1.43. 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 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 1.44. 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 applied to such Lender's Fixed Rate Loans shall be applied instead
to its Variable Rate Loans; and
(b) all Revolving Credit Loans which would otherwise be
made or renewed by such Lender as Fixed Rate Loans shall be made instead as
Variable Rate
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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 (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 and
Interest Periods) in accordance with their respective Revolving Credit
Commitments.
Section 1.45. Certain Compensation. The Borrower 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 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 amount of interest
(as reasonably determined by such Lender) such Lender would have bid in the
London interbank market (if such Revolving Credit Loan is a Fixed Rate Loan)
for Dollar deposits for amounts comparable to such principal amount and
maturities comparable to such period. A determination of any Lender as to the
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amounts payable pursuant to this Section 4.05 shall be conclusive absent
manifest error.
ARTICLE 5. CONDITIONS PRECEDENT.
Section 1.51. Documentary Conditions Precedent. The obligations of
the Lenders to make the Revolving Credit 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 Guarantors, the Lenders and the Administrative
Agent;
(b) the Revolving Credit Notes duly executed by the
Borrower;
(c) the Subordination Agreement duly executed by MCI, the
Administrative Agent and the Borrower;
(d) 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;
(e) evidence that all actions to consummate, complete and
effectuate the Merger, including the obtaining of all requisite consents to the
Merger from third parties under Assigned Agreements and the making of all
requisite filings with all Governmental Authorities arising from the Merger
(including, without limitation, the filing of the Certificate of Merger with
the Secretary of State of Delaware);
(f) evidence that the Borrower shall have received
proceeds (net of underwriting commissions and discounts and fees and expenses)
from the Initial Public Offering of at least $30,000,000;
(g) evidence that the Intercompany Agreement shall have
been duly executed by each of the Parent and Dr. Rajendra Singh;
(h) evidence that the phantom membership interests
previously granted under the Phantom Membership Plan shall have been converted
into options under the Borrower's 1996 Employee Stock Option Plan;
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(i) a certificate of the Secretary of each of the
Obligors dated the Closing Date, (i) 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, (ii) certifying the
names and true signatures of the officers of such Obligor authorized to sign
the Facility Documents to which it is a party and the other documents to be
delivered by it under this Agreement, (iii) verifying that the certificate or
articles of incorporation, bylaws, partnership agreement, limited liability
company agreement and other documents of organization or formation of such
Obligor and each of its Subsidiaries attached thereto are true, correct and
complete as of the date thereof and (iv) if such Obligor is a Subsidiary
Guarantor, a copy of the stock ledger or membership interest register
maintained by such Obligor;
(j) a certificate of a duly authorized officer of the
Borrower, dated the Closing Date, stating that the representations and
warranties in Article 6 are true and correct on such date as though made on and
as of such date, all agreements and conditions required to be performed and
complied with by such date have been performed and complied with and that no
event has occurred and is continuing which constitutes a Default or Event of
Default;
(k) (i) good standing certificates (or other analogous
certificates) with respect to each of the LCC Consolidated Entities from its
jurisdiction of organization, (ii) evidence that each of the LCC Consolidated
Entities is qualified as a foreign corporation, partnership or limited
liability business entity in every other jurisdiction in which it does business
and (iii) tax good standing certificates (or other analogous certificates) with
respect to each of the LCC Consolidated Entities from each jurisdiction in
which it does business;
(l) a legal opinion of Hogan & Hartson L.L.P., counsel to
the LCC Consolidated Entities, in substantially the form of EXHIBIT C and as to
such other matters as the Administrative Agent may reasonably request;
(m) certified complete and correct copies of the Merger
Agreement and 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);
(n) certified complete and correct copies of each of the
financial statements referred to in Section 6.05; and
(o) an initial borrowing notice of the Borrower relating
to the Revolving Credit Loans to be made and the Letters of Credit to be issued
on the Closing Date
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together with a letter from the Borrower containing wire transfer instructions
and account information relating to the funds to be made available by the
Lenders to the Borrower on the Closing Date.
On the Closing Date, each of the Lenders shall surrender to the Borrower the
Existing Notes held by it under the Existing Credit Agreement, in each case
marked "Replaced".
Section 1.52. Additional Conditions Precedent. The obligations of
the Lenders to make any Revolving Credit 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 Revolving Credit 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 Revolving
Credit 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 Revolving Credit Loans or the issuance of Letters of Credit.
Section 1.53. Deemed Representations. Each notice of borrowing or
request for the issuance of a Letter of Credit hereunder and acceptance by the
Borrower 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 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 (after giving
effect to the Merger):
Section 1.61. Organization, Good Standing and Due Qualification.
Except as set forth on SCHEDULE 6.01, 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.
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Section 1.62. 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 company 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) 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 1.63. 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 1.64. 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 1.65. Financial Statements.
(a) Except as set forth on SCHEDULE 6.05, the
consolidated balance sheets of the Borrower and its Subsidiaries as at December
31, 1995 and 1994, and the related consolidated statements of income, cash
flows and 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 June 30, 1996, and the related statements of
income, cash flow and members' capital of the Borrower and its Subsidiaries,
for the six month period then ended, copies of which have been furnished to
each of the Lenders, are complete
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and correct in all material respects and fairly present the financial condition
of the LCC Consolidated Entities at such dates and the results of the
operations of the LCC Consolidated Entities for the periods covered by such
statements, all in accordance with GAAP consistently applied.
(b) The combined balance sheets of the LCC Predecessor
Entities as at December 31, 1993, 1992 and 1991, and the related combined
statements of income, cash flows and shareholders' equity of the LCC
Predecessor Entities, for the Fiscal Years then ended, and the accompanying
footnotes, together with the opinion thereon of KPMG Peat Marwick, independent
certified public accountants, 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 Predecessor Entities at such dates
and the results of the operations of the LCC Predecessor Entities for the
periods covered by such statements, all in accordance with GAAP consistently
applied.
(c) After giving effect to the Initial Public Offering,
the assumption by the Borrower of the MCI Subordinated Telcom Note and the
conversion of the membership interest under the Phantom Membership Plan, the
pro forma balance sheet of the LCC Consolidated Entities as of June 30, 1996
(the "Pro Forma Balance Sheet") is complete and correct in all material
respects and fairly presents the financial condition of the LCC Consolidated
Entities as at June 30, 1996 in accordance with GAAP consistently applied.
(d) 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.
(e) Except as set forth on the Pro Forma Balance Sheet,
in the notes thereto or on SCHEDULE 6.05, 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 June 30, 1996, there has been no change which could reasonably be
expected to have a Material Adverse Effect.
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(f) The aggregate amount of Restricted Payments made by
the Borrower, (i) during the Fiscal Year ending on December 31, 1994 was
approximately $10,495,000, (ii) during the Fiscal Year ending on December 31,
1995 was approximately $20,850,000 and (iii) during the period from January 1,
1996 through the Closing Date was approximately $7,630,000. No payments are
due to MCI by the Borrower pursuant to Section 3.2 of the Securityholders
Agreement dated as of June 27, 1994 among the Parent, the other members of Old
LCC and MCI.
Section 1.66. 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 1.67. 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 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 1.68. ERISA. Except as set forth on SCHEDULE 6.08, 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 1.69. 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,
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(ii) the percentage of such LCC Consolidated Entity's ownership interest in
such Affiliate, (iii) the percentage of the common controlling person's
interest in such LCC Consolidated Entity and such Affiliate and (iv) the nature
of any material transaction between 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.
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 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.
Section 6.11. Material Contracts. As of the Closing Date, SCHEDULE
6.11 contains a complete and correct list of all revenue-producing contracts
and 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 listed on SCHEDULE 6.11 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, patent
applications, registered and unregistered trademarks, registered service marks,
pending trademark or service mark applications and registered copyrights owned
or filed by any LCC Consolidated Entity and (b) all licenses and other rights
granted by any third party to any LCC Consolidated Entity 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
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and except as set forth on SCHEDULE 6.12, no LCC Consolidated Entity 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 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,
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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 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, 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. Except as set forth on
SCHEDULE 6.16, 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 the Borrower after giving effect to all the transactions contemplated
by the Facility Documents and the funding of the Revolving Credit 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) of the Borrower as they mature.
The Property of the Borrower does not constitute unreasonably small capital for
the Borrower to carry out its business as now conducted and as proposed to be
conducted including the capital needs of the Borrower. The Borrower does not
intend to, nor does the Borrower believe that it will, incur Debts beyond its
ability to pay such Debts as they mature (taking into
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account the timing and amounts of cash to be received by the Borrower, and of
amounts to be payable on or in respect of Debt of the Borrower). The cash
available to the Borrower after taking into account all other anticipated uses
of the cash of the 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. The Borrower does not believe that final judgments against it in
actions for money damages will be rendered at a time when, or in an amount such
that, the 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 Borrower after
taking into account all other anticipated uses of the cash of the Borrower, is
anticipated to be sufficient to pay all such judgments promptly in accordance
with their terms.
Section 6.20. Merger Documents. Each of the Lenders and the
Administrative Agent has received a complete and correct copy of the Merger
Agreement (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. The Merger Agreement has been duly executed and delivered by the
Borrower and Old LCC and is in full force and effect. The Merger Agreement is
a legal, valid and binding obligation of Old LCC and the Borrower enforceable
against Old LCC and the Borrower 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. MCI Note Purchase Documents. 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.
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Section 6.22. NextWave Investment Documents; DCR Investment
Documents. Each of the Lenders and the Administrative Agent has received a
complete and correct copy of the NextWave Investment Documents and the DCR
Investment 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 NextWave Investment Documents and the DCR
Investment Documents has been duly executed and delivered by Old LCC and, to
the best knowledge of the Borrower, DCR and is in full force and effect. To
the best knowledge of the Borrower, each of the representations and warranties
of NextWave and DCR set forth in each of the NextWave Investment Documents and
the DCR Investment Documents is true and correct in all material respects as of
the Closing Date. Each of the NextWave Investment Documents and the DCR
Investment Documents is a legal, valid and binding obligation of the Borrower
and, to the best knowledge of the Borrower, NextWave and DCR, respectively,
enforceable against the Borrower and, to the best knowledge of the Borrower,
NextWave and DCR, respectively, 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 6.23. 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 6.24. Senior Debt. The obligations of the Borrower hereunder
and under the other Facility Documents constitute "Senior Debt" under an as
defined in the Subordination Agreement and in the MCI Subordinated Notes with
respect to the MCI Subordinated Notes.
Section 6.25. Merger of Old LCC into the Borrower. The Certificate
of Merger has been duly filed with the Secretary of State of Delaware and the
Merger has been effected in accordance with the Merger Agreement and applicable
Delaware law. Without limitation of the foregoing, Old LCC has been merged
with and into the Borrower (the separate legal existence of Old LCC having
ceased) and the Borrower is the surviving entity. The Borrower possesses the
rights, privileges, powers, franchises and Property of Old LCC and is subject
to all restrictions, disabilities, duties and debts of Old LCC. The Merger
constitutes a tax-free reorganization under Section 351 of the Code.
ARTICLE 7. AFFIRMATIVE COVENANTS.
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So long any Obligation shall remain unpaid, any Letter of Credit shall
remain outstanding or any Lender shall have any Revolving Credit Commitment,
the Borrower shall, and shall cause each of its Subsidiaries to:
Section 1.71. 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 1.72. Conduct of Business. Continue to primarily engage in
the Business.
Section 1.73. 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 1.74. Maintenance of Records. Keep adequate records and books
of account, in which complete entries will be made in accordance with GAAP,
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 1.75. 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 1.76. 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
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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 1.77. 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 1.78. 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 consolidating
balance sheets of the LCC Consolidated Entities as of the end of such Fiscal
Year and consolidated and unaudited consolidating statements of income, cash
flows and members' capital 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 each of the first three Fiscal Quarters, consolidated and
consolidating balance sheets of the LCC Consolidated Entities as of the end of
such Fiscal Quarter and consolidated statements of income, cash flows and
members' capital 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, 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
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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) for the Fiscal Year ending
on December 31, 1996 and each Fiscal Year ending thereafter, 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) 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;
(f) 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;
(g) 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;
(h) 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;
(i) 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
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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 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;
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(j) 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 furnished only if they are available to such
LCC Consolidated Entity or an ERISA Affiliate;
(k) 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;
(l) 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;
(m) 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;
(n) 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;
(o) 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
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be necessary to perfect the Lien of the Administrative Agent under the Security
Documents;
(p) promptly after the commencement thereof or promptly
after any LCC Consolidated Entity knows of the commencement or threat thereof,
notice of any Forfeiture Proceeding;
(q) 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 would cause monetary loss in excess of $500,000 not otherwise covered by
insurance; and
(r) 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 1.79. 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, 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 Revolving Credit
Commitment, the Borrower shall not, and shall cause each of its Subsidiaries
not to:
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Section 1.81. Debt. Create, incur, assume or suffer to exist any
Debt, except:
(a) Debt of the LCC Consolidated Entities under this
Agreement, the Revolving Credit Notes, the Letters of Credit, the Interest Rate
Protection Agreements, the Currency Protection Agreements and the other
Facility Documents;
(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 to any other Obligor, (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) 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(i) 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 1.82. Guaranties. Assume, guarantee, endorse or otherwise
become directly or contingently responsible or liable for any Guaranty, except:
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(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 $500,000; and
(c) Guaranties by endorsement of negotiable instruments
for deposit or collection or similar transactions in the ordinary course of
business.
Section 1.83. 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 Revolving
Credit 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
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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;
(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 1.84. 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) Capital Leases permitted by Section 8.01, Section
8.03 and Section 8.13; and
(c) other leases, provided that Consolidated Rentals
during any Fiscal Year shall not exceed $7,500,000.
Section 1.85. 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 1.86. Investments. Make any Investment, except:
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(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;
(c) in stock, obligations or securities received in
settlement of debts (created in the ordinary course of business) owing to such
LCC Consolidated Entity;
(d) to or in any Obligor or in any corporation, limited
partnership or limited liability business entity that concurrently with such
Investment is or becomes an Obligor;
(e) in loans or advances by the Borrower to the Parent to
assist the Parent in paying certain taxes due in connection with the assumption
of the MCI Subordinated Telcom Note by the Borrower and the dividend of the
Revolving Promissory Note dated May 30, 1995 issued by the Parent to Old LCC 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;
(f) in connection with an Acceptable Acquisition;
(g) in connection with an Acceptable Investment;
(h) in NextWave or DCR pursuant to the terms of the
NextWave Investment Documents and the DCR Investment Documents, respectively;
and
(i) 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 1.87. 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; and
(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.
Section 1.88. Sale of Assets. Sell, lease, assign, transfer or
otherwise dispose of any of its now owned or hereafter acquired Property
(including, without
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limitation, shares of stock and indebtedness, receivables and leasehold
interests); except:
(a) for inventory disposed of in the ordinary course of
business;
(b) for Proprietary Rights licensed in the ordinary
course of business;
(c) the sale or other disposition of Property no longer
used or useful in the conduct of its business;
(d) 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 1.89. 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
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(b) any LCC Consolidated Entity may effect any
Acquisition permitted by Section 8.11.
Section 8.11. Acquisitions. Make any Acquisition other than an
Acceptable Acquisition.
Section 8.12. No Activities Leading to Forfeiture. Engage in or
propose to be engaged in the conduct of any business or activity which could
result in a Forfeiture Proceeding.
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 $5,000,000.
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) 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 Revolving Credit
Commitment and as determined as of the end of each Fiscal Quarter:
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Section 1.91. Fixed Charge Coverage Ratio. The LCC Consolidated
Entities shall maintain at all times a Fixed Charge Coverage Ratio of not less
than 2.00 to 1.00.
Section 1.92. Minimum Tangible Net Worth. The LCC Consolidated
Entities shall maintain at all times Consolidated Tangible Net Worth of not
less than the sum of (a) (i) if such time is before December 31, 1996,
$64,000,000 or (ii) if such time is on or after December 31, 1996, $69,000,000
plus (b) the aggregate sum of the Fiscal Quarter Net Worth Increase Amounts
calculated for each Fiscal Quarter ending after the Closing Date.
Section 1.93. Current Ratio. The LCC Consolidated Entities shall
maintain at all times a Current Ratio of not less than 1.75 to 1.00.
Section 1.94. Cash Flow Leverage Ratio. The LCC Consolidated
Entities shall maintain at all times a Cash Flow Leverage Ratio of not greater
than 3.00 to 1.00.
ARTICLE 10. EVENTS OF DEFAULT.
Section 1.101. Events of Default. Any of the following events shall
be an "Event of Default":
(a) the Borrower shall: (i) fail to pay the principal of
any Revolving Credit Note or any Reimbursement Obligation on or before the date
when due and payable; or (ii) fail to pay interest on any Revolving Credit Note
or any fee or other amount due hereunder on or before the date when due and
payable;
(b) any representation or warranty made or deemed made by
any LCC Consolidated Entity 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 shall: (i) fail to
perform or observe any term, covenant or agreement contained in 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
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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,
whether or not waived;
(e) any LCC Consolidated Entity: (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 90 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 90 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 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
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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 Dr. Rajendra Singh, Neera Singh, any trusts for their
benefit or the benefit of their family members and any of their respective
affiliates controlled by any one or more of 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 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;
(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.
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Section 1.102. 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, (a) declare the Revolving Credit
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 Revolving Credit Notes, all
interest thereon and all other amounts payable under this Agreement, the
Revolving Credit Notes and the other Facility Documents to be forthwith due and
payable, whereupon the Revolving Credit 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/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 Revolving Credit Commitments shall be immediately terminated, and
the Revolving Credit 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. 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 1.111. Guarantied Obligations. Each of the Subsidiary
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 Administrative Agent, for the
benefit of the Lenders, as and for such Subsidiary Guarantor's own debt, until
final payment has been made:
(a) the due and punctual payment in full in cash 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
Subsidiary 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
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(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.
Section 1.112. 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 Revolving Credit 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 Revolving
Credit 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 Subsidiary
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 1.113. Waivers. To the fullest extent permitted by law, each
Subsidiary 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
Subsidiary Guarantor's right to make inquiry of the Administrative Agent to
ascertain the amount of the Obligations at any reasonable time;
(c) notice of the amount of the Obligations, subject to
each Subsidiary 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, any other guarantor or any other fact that might increase each
Subsidiary Guarantor's risk hereunder;
(e) notice of presentment for payment, demand, protest,
and notice thereof as to the Revolving Credit Notes or any other Facility
Document;
(f) notice of any Default or Event of Default;
(g) all other notices and demands to which each
Subsidiary Guarantor might otherwise be entitled (except if such notice or
demand is specifically otherwise required to be given to each Subsidiary
Guarantor hereunder or under the other Facility Documents);
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(h) the right by statute or otherwise to require any or
each Lender or the Administrative Agent to institute suit against the Borrower
or any other guarantor or to exhaust the rights and remedies of any or each
Lender or the Administrative Agent against the Borrower or any other guarantor,
each Subsidiary 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 Subsidiary 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 by reason
of the cessation from any cause whatsoever of the liability of the 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 Subsidiary Guarantor made under any judgment, order or
decree based on this Agreement, and each Subsidiary 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
Subsidiary 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. Nothing
shall discharge or satisfy the obligations of any Subsidiary Guarantor
hereunder except the full and final performance and indefeasible payment of the
Obligations by such Subsidiary Guarantor, upon which each Lender agrees to
transfer and assign its interest in the Revolving Credit Notes and the other
Facility Documents to such Subsidiary Guarantor without recourse,
representation or warranty of any kind (other than that such Lender owns its
Revolving Credit Notes and that such Revolving Credit 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 1.114. Releases. Each of the Subsidiary Guarantors consents
and agrees that, without notice to or by such Subsidiary Guarantor and without
affecting or impairing the obligations of such Subsidiary 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 Revolving Credit Notes or the
other Facility Documents;
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(b) grant other indulgences to the 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 Revolving Credit 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 1.115. Marshaling. Each of the Subsidiary 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 Subsidiary
Guarantor or against or in payment of any or all of the Obligations; and
(b) to the extent the 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 said payment or payments had not been made and such
Subsidiary Guarantor shall remain liable for such Obligation.
Section 1.116. Liability. Each of the Subsidiary Guarantors agrees
that the liability of such Subsidiary 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 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 1.117. 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
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the issuance or assumption of any obligations (including, without limitation,
the Revolving Credit Notes and the Letter of Credit Obligations) of or by the
Borrower or any other guarantor, or with respect to the execution and delivery
of any agreement (including, without limitation, the Revolving Credit Notes and
the other Facility Documents) of the Borrower or any other guarantor.
Section 1.118. Election to Perform Obligations. Any election by any
of the Subsidiary Guarantors to pay or otherwise perform any of the obligations
of any Obligor under the Revolving Credit 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 Revolving
Credit Notes, the Letters of Credit or any of the other Facility Documents.
Section 1.119. No Election. The Administrative Agent shall have the
right to seek recourse against any one or more of the Subsidiary Guarantors to
the fullest extent provided for herein for such Subsidiary Guarantor's
obligations under this Agreement (including, without limitation, this Article
11) in respect of the Revolving Credit 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 Subsidiary 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 or proceeding,
notwithstanding the effect of any such action or proceeding upon such
Subsidiary 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
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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 Subsidiary 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
Subsidiary 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 Revolving Credit
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 and
the Subsidiary 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.
Section 11.14. Cumulative Remedies. No remedy under this Agreement
(including, without limitation, this Article 11), the Revolving Credit 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 Revolving Credit Notes,
the Letters of Credit or any of the other Facility Documents.
Section 11.15. Survival. The obligations of the Subsidiary
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 Revolving
Credit Commitments.
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Section 11.16. No Setoff, Counterclaim or Withholding; Gross-Up.
Each payment by a Subsidiary 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 Subsidiary Guarantor shall make the withholding and pay the
amount withheld to the appropriate Governmental Authority before penalties
attach thereto or interest accrues thereon.
ARTICLE 12. THE ADMINISTRATIVE AGENT.
Section 1.121. 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 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 1.122. 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
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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 1.123. 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 Revolving Credit
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
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 1.124. Rights of Administrative Agent as a Lender. With
respect to its Revolving Credit 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
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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 1.125. 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 the Borrower 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 Revolving Credit 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 the foregoing to the extent they arise from
the gross negligence or wilful misconduct of the party to be indemnified.
Section 1.126. 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 1.127. 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
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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 1.128. 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 1.129. 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 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
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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 Revolving Credit Loan or the 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 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 and the
Payor Lender fails to pay the amount thereof to the Administrative Agent
forthwith upon demand, the 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
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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 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 Revolving Credit Loan to be made by it on the
date specified therefor shall not relieve any other Lender of its obligation to
make its Revolving Credit Loans on such date, but no Lender shall be
responsible for the failure of any other Lender to make a Revolving Credit 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 Revolving Credit Loans, Etc.
Except to the extent otherwise provided: (a) each borrowing under Section 2.01
shall be made from the Lenders, each reduction or termination of the amount of
the Revolving Credit Commitments under Section 2.08 shall be applied to the
Revolving Credit 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 Revolving Credit
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 Revolving Credit 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 Revolving Credit Loans of a
particular type and a particular Interest Period shall be made to the
Administrative Agent for the account of the Lenders holding Revolving Credit
Loans of such type and Interest Period pro rata in accordance with the
respective unpaid principal amounts of such Revolving Credit Loans of such type
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.
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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 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 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
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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 the Borrower)
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 1.131. 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
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 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 Revolving Credit
Commitments; (b) extend the date fixed for the payment of principal of or
interest on any Revolving Credit 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 Subsidiary 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.
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Section 1.132. Usury. Anything herein to the contrary
notwithstanding, the obligations of the Obligors under this Agreement, the
Revolving Credit 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 1.133. Expenses. Each of the Obligors 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 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 Revolving Credit 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 1.134. Survival. The obligations of the Obligors under
Sections 4.01, 4.05 and 13.03 shall survive the repayment of the Obligations
and the termination of the Revolving Credit Commitments and the Letters of
Credit.
Section 1.135. Assignment; Participations.
(a) This Agreement shall be binding upon, and shall inure
to the benefit of, the Borrower, the Subsidiary Guarantors, the Administrative
Agent, the Lenders and their respective successors and assigns, except that the
Borrower and the Subsidiary Guarantors may not assign or transfer its rights or
obligations
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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 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 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 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 Lender 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 Lender. No such assignment
shall release the assigning Lender from its obligations hereunder.
Section 1.136. 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 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:
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(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 1.137. 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 or in any other currency, against any amount payable by such Obligor to
such Lender under this Agreement, such Lender's Revolving Credit Note, 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 1.138. 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, REVOLVING CREDIT NOTE, ANY LETTER
OF CREDIT OR ANY OTHER FACILITY DOCUMENT, AND THE BORROWER 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
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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 Revolving Credit Notes, the Letters
of Credit and the other Facility Documents.
Section 1.139. 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 Subsidiary Guarantor's
obligations under this Agreement and under the other Facility Documents invalid
or unenforceable, the respective obligations of such Subsidiary 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.
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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 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
Revolving Credit 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. Reaffirmation. 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 Revolving Credit Notes, the Letters of Credit and the other
Facility Documents,
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including, without limitation, all liabilities and obligations under the
Revolving Credit Loans as herein modified and increased and all of the Letter
of Credit Obligations. All references to "Borrower" in any Facility Document
shall be deemed to be to the Borrower as herein defined, and 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. All
references to "Note" or "Notes" in any Facility Document shall be deemed to be
to the Revolving Credit Notes issued hereunder. All references to "Loan" or
"Loans" in any Facility Document shall be deemed to be to the Revolving Credit
Loan incurred hereunder. All references to "Commitment" or "Commitments" in
any Facility shall be deemed to be to the Revolving Credit Commitments granted
hereunder. All references to "Secured Obligations" in any Facility Document
shall be deemed to include all liabilities and obligations under the Revolving
Credit Loans as herein modified and increased 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. Release. Each of the Administrative Agent and the
Lenders hereby releases the Parent from all of its obligations under the Parent
Guaranty and the other Facility Documents (including, without limitation, the
Parent Pledge Agreement) and hereby agrees that the Parent shall have no
liability or obligation to the Administrative Agent or any Lender under the
Parent Guaranty or any of the other Facility Documents.
Section 13.18. 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 and
(b) Schedule A to the Pledge Agreement is hereby amended and restated as set
forth on SCHEDULE B hereto.
79
<PAGE> 86
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
-----------------------------------
Name:
Title:
Address for Notices:
Arlington Courthouse Plaza II
2300 Clarendon Boulevard
Suite 800
Arlington, Virginia 22201
Attention: Chief Financial Officer
Telecopier No.: (703) 527-9433
with a copy to:
Arlington Courthouse Plaza II
2300 Clarendon Boulevard
Suite 800
Arlington, Virginia 22201
Attention: General Counsel
Telecopier No.: (703) 527-9433
[SIGNATURE PAGE TO CREDIT AGREEMENT]
<PAGE> 87
SUBSIDIARY GUARANTORS:
LCC DESIGN SERVICES, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY
By
----------------------------------------
Name:
Title:
LCC DEVELOPMENT COMPANY, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
By
----------------------------------------
Name:
Title:
Address for Notices:
c/o LCC, L.L.C.
Arlington Courthouse Plaza II
2300 Clarendon Boulevard
Suite 800
Arlington, Virginia 22201
Attention: Chief Financial Officer
Telecopier No.: (703) 527-9433
with a copy to:
c/o LCC, L.L.C.
Arlington Courthouse Plaza II
2300 Clarendon Boulevard
Suite 800
Arlington, Virginia 22201
Attention: General Counsel
Telecopier No.: (703) 527-9433
[SIGNATURE PAGE TO CREDIT AGREEMENT]
<PAGE> 88
ADMINISTRATIVE AGENT:
THE CHASE MANHATTAN BANK
By
----------------------------------------
Name:
Title:
Address for Notices:
4 Chase Metrotech Center
13th Floor
Brooklyn, NY 11245
Attention: New York Agency
with a copy to:
999 Broad Street
Bridgeport, Connecticut 06604
Attention: Alan Aria
[SIGNATURE PAGE TO CREDIT AGREEMENT]
<PAGE> 89
LENDERS:
THE CHASE MANHATTAN BANK
By
----------------------------------------
Name:
Title:
Lending Office and Address for
Notices:
999 Broad Street
Bridgeport, Connecticut 06604
Attention: Alan Aria
Telecopier No.: (203) 382-6573
[SIGNATURE PAGE TO CREDIT AGREEMENT]
<PAGE> 90
SCHEDULE I
Revolving Credit Commitments
----------------------------
The Chase Manhattan Bank $20,000,000
<PAGE> 91
H&H DRAFT: 09/23/96 1:46 PM
SCHEDULE 6.01
GOOD STANDING, ETC.
<TABLE>
<CAPTION>
LCC DESIGN LCC DEVELOPMENT
JURISDICTION LCC INTERNATIONAL, INC. SERVICES, L.L.C. COMPANY, L.L.C.
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Alabama Registered August 6, 1996 N/A N/A
Arizona Registered August 6, 1996 N/A N/A
Arkansas Registered August 6, 1996 N/A N/A
California Registered August 6, 1996 N/A N/A
Colorado Registered August 6, 1996 N/A N/A
Connecticut Registered August 6, 1996 N/A N/A
Delaware Registered August 6, 1996 Registered July 18, 1994 Registered Jan. 24, 1996
District of Columbia Registered August 8, 1996 N/A N/A
Florida Registered August 6, 1996 N/A N/A
Georgia Registered August 6, 1996 N/A N/A
Hawaii Registered August 7, 1996 N/A N/A
Idaho Registered August 4, 1996 N/A N/A
Illinois Registered August 6, 1996 N/A N/A
Indiana Registered August 6, 1996 N/A N/A
Iowa Registered August 6, 1996 N/A N/A
Kansas Registered August 6, 1996 N/A N/A
Kentucky Registered August 6, 1996 N/A N/A
Louisiana Registered August 19, 1996 N/A N/A
Maryland Registered August 6, 1996 N/A N/A
Massachusetts Registered August 6, 1996 N/A N/A
Michigan Registered August 6, 1996 N/A N/A
Minnesota Registered August 6, 1996 N/A N/A
Mississippi Registered August 6, 1996 N/A N/A
Missouri Registered August 6, 1996 N/A N/A
Nebraska Registered August 6, 1996 N/A N/A
Nevada Registered August 6, 1996 N/A N/A
New Jersey Registered August 6, 1996 N/A N/A
New Mexico Registered August 7, 1996 N/A N/A
New York Registered Sept. 23, 1996 N/A N/A
North Carolina Registered August 6, 1996 N/A N/A
North Dakota Registered August 7, 1996 N/A N/A
Ohio Registered August 6, 1996 N/A N/A
Oklahoma Registered August 6, 1996 N/A N/A
Pennsylvania Registered August 6, 1996 N/A N/A
South Carolina Registered August 6, 1996 N/A N/A
Tennessee Registered August 6, 1996 N/A N/A
Texas Registered August 6, 1996 N/A N/A
Utah Registered August 6, 1996 N/A N/A
Virginia Registered September 20, 1996 Registered July 29, 1994 Registered May 15, 1996
Washington Registered August 6, 1996 N/A N/A
West Virginia Registered September 9, 1996 N/A N/A
Wisconsin Registered August 6, 1996 N/A N/A
Wyoming Registered August 6, 1996 N/A N/A
</TABLE>
<PAGE> 92
SCHEDULE 6.04
LITIGATION, ETC.
1. Katyal v. LCC, L.L.C., Arco No. 96-042-3, EEOC No. 10B-95-0117. This case
involves a charge of national origin discrimination (East Indian) filed on
October 12, 1995. Charging Party claims that she was denied promotions and
ultimately laid off because of her nationality. If she prevails she would be
entitled to back pay and benefits retroactively to her date of termination
(9/12/95), compensatory and punitive damages capped at $300,000 and attorney
fees. The company appears to have a meritorious defense to these claims.
2. Ceili International Inc., et. al. vs. LCC, L.L.C., Nos. 151018 and 153123,
Circuit Court for the County of Fairfax. On April 10, 1996 Plaintiff, a former
LCC contractor, filed a contract action for collection of disputed amounts
invoiced to LCC, L.L.C. Plaintiff seeks relief in the total amount of
$346,000.00. LCC, L.L.C. has replied to claim and asserted defenses and
counterclaims against Plaintiff. On June 17, 1996, LCC filed an action against
Ceili, Kathyrne Ward, and Robert McCleary seeking $1.5 million in compensatory
damages.
3. Taylor v. LCC, Inc., Arco No. 96-145-E, EEOC No. 10B-96-0082. On May 15,
1996, Plaintiff, a former LCC employee, 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 and
cross-filed with the Equal Employment Opportunity Commission. LCC has replied
to claim and asserted defenses against Plaintiff. No suit has been filed.
4. GBR v. Eurofon Incorp. & Co. KG (Landgericht Dusseldorf, Germany).
Plaintiff Landlord filed a complaint against Eurofon seeking DM 110,000 on a
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 decision regarding postponement is pending.
5. See Schedule 6.07 for a description of certain foreign and state taxes
owing by the LCC Consolidated Entities.
<PAGE> 93
SCHEDULE 6.05
MATERIAL LIABILITIES
None.
<PAGE> 94
SCHEDULE 6.07
TAXES
1. LCC, L.L.C. has approximately $6,744,000 in its Accrued Foreign Tax
liability account at June 30, 1996. Approximately $414,000 of this amount
represents estimated accrued interest on outstanding foreign taxes. The
balance, approximately $6,330,000, represents liabilities which have been
accrued for Income Tax, Branch Profits Tax, and Withholding Tax for 27
countries. Of the $6,330,000, approximately $5.5 million, represents
liabilities accrued for eight foreign countries (Australia, Canada, Colombia,
France, India, Korea, Malaysia, and the United Kingdom).
2. LCC, L.L.C. has approximately $1,100,395 in its Accrued State and Local Tax
Liability Account at June 30, 1996. Approximately $27,000 of this amount
represents estimated accrued interest on the outstanding state and local taxes.
The balance, approximately $1,073,395 represents liabilities which have been
accrued for Income Tax, Sales & Use Tax, Payroll Tax, Property Tax, and Local
Gross Receipts Tax for approximately 20 jurisdictions.
<PAGE> 95
SCHEDULE 6.08
ERISA
In 1994 NationsBank mistakenly determined that LCC, L.L.C.'s 401(k) Plan did
not satisfy the 401(k) plan nondiscrimination tests for the 1993 plan year, and
instructed the Plan's administrator and trustee to make corrective
distributions of excess contributions to highly compensated employees. Relying
on NationsBank's determination, LCC, L.L.C. made certain impermissible
distributions of elective contributions to highly compensated employees. When
the distribution defect was discovered, LCC, L.L.C. took corrective action and
sought a compliance statement pursuant to the IRS voluntary compliance
resolution program. LCC, L.L.C. believes that it has restored all Plan
participants to the same positions that it would have been in had it not been
for NationsBank's error, and, based on informed, non-binding discussions with
the IRS, does not believe that the IRS will make any material additional
demands. The IRS is currently in the process of reviewing Borrower's
submission requesting a compliance statement.
LCC, L.L.C.'s 401(k) plan is a qualified non-standardized plan administered by
Fidelity. LCC, L.L.C. has received a Fidelity opinion letter regarding the
plan. Although LCC, L.L.C.'s 401(k) plan has filed all required amendments to
the plan in a timely manner, LCC, L.L.C. has not applied for an IRS
determination letter. This matter is currently being reviewed by LCC, L.L.C.'s
counsel at Winston & Strawn, in New York. Counsel has advised LCC, L.L.C. that
its failure to obtain an IRS determination letter is not a material default and
will not disqualify the plan. LCC, L.L.C. is currently reviewing its plan to
determine if a change of plan is necessary due to potential corporate
restructuring and LCC, L.L.C. plans to apply for a determination letter in
connection with the review of the plan.
<PAGE> 96
SCHEDULE 6.09
SUBSIDIARIES, AFFILIATES
SUBSIDIARIES
1. LCC Design Services, L.L.C.
Address: 2300 Clarendon Blvd., Suite 800
Arlington, Virginia, 22201
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. Eurofon Incorp. & Co. KG
Address: Grafenberger Allee 99
40000 Dusseldorf, Germany
Jurisdiction of Formation: Germany
Ownership: The Borrower owns 80% of the partnership interests of
Eurofon Incorp. & Co. KG.
3. Eurofon de France S.A.R.L.
Address: 7 BD Romain Rolland, B.P. 87
92128 Montrouge Cedex, France
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:
Address: c/o 2300 Clarendon Blvd. Suite 800
Arlington , VA 22201
Jurisdiction of Formation: United Kingdom
Ownership: The Borrower owns 99% and LCC Design Services owns 1% of
the ordinary shares of LCC, United Kingdom.
5. LCC Development Company, L.L.C.:
Address: 2300 Clarendon Blvd. Suite 800
Arlington, VA 22201
Jurisdiction of Formation: Delaware
<PAGE> 97
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.
AFFILIATES
1. Telcom Ventures, L.L.C.
Address: 2300 Clarendon Blvd., Suite 800
Arlington, Virginia, 22201
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 93.9% of the combined voting power of
both classes of Common Stock of the Borrower.
2. Cherrywood Holdings, Inc. (formerly LCC, Incorporated)
Address: 2300 Clarendon Blvd., Suite 800
Arlington, Virginia, 22201
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. Carlyle
Address: 7915 Jones Branch Drive
McLean, VA 22102
Jurisdiction of Formation: Delaware
Ownership: Carlyle 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: 2300 Clarendon Blvd.
Arlington, VA 22201
Jurisdiction of Formation: Delaware
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.
5. Koll Telecommunications Services, L.L.C.
<PAGE> 98
Address: 5000 Birch Street, Suite 330
Newport Beach, CA 92660
Jurisdiction of Formation: Delaware
Ownership: The Borrower owns 33 1/3% of the issued and
outstanding membership interests in Koll.
6. Microcell Management L.L.C.
Address: 2111 Wilson Boulevard, L.L.C.
Arlington, VA 22201
Jurisdiction of Formation: Maryland
Ownership: The Borrower owns a 35% interest in Microcell.
7. See this Schedule 6.09 for a list of Subsidiaries. Each Subsidiary of
the LCC Consolidated Entities is also an Affiliate of the LCC Consolidated
Entities.
8. 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.
TRANSACTIONS BETWEEN LCC CONSOLIDATED ENTITIES
AND AFFILIATES
1. As of August 31, 1996, Telcom Ventures, L.L.C. owed to the Borrower
$7,810.68 of trade receivables.
2. As of August 31, 1996, the Borrower owed (i) $61,720 to Eurofon
Incorp. & Co. KG.
3. As of August 31, 1996, LCC, Incorporated owed (i) $91,067.63 to the
Borrower
4. As of August 31, 1996, Eurofon Incorp. & Co. KG owed $20,946.37 to
LCC, Incorporated.
5. Airlink S.A. has a Software License Agreement with LCC, L.L.C.
pursuant to which $200,000.00 U.S. dollars is presently due and owing from
Airlink, S.A to LCC, L.L.C.
6. LCC, L.L.C. provides facilities to Telcom Ventures, L.L.C. and the
Borrower charges Telcom Ventures an overhead allocation of approximately
$2,800.00 per month per Telcom Ventures employee. LCC, L.L.C. also charges
Telcom Ventures actual expenses relating to telephone and facsimile use, office
supplies, shipping and mailing charges and assorted miscellaneous charges.
The monthly charge to Telcom Ventures is approximately $65,000.00 per month.
7. From time to time in the normal course of business, the Borrower
provides certain engineering and related services to Telcom Ventures and/or its
affiliates. As of August 31, 1996 Telcom Ventures and/or its affiliates owed
approximately $256,362.88 to the Borrower for such services. Of that amount,
$244,556.54 is for the Digital Mobile Telephone Agreement.
8. The Borrower has entered into an Intercompany Agreement dated August
27, 1996 with Telcom Ventures, L.L.C., LCC, L.L.C., Cherrywood Holdings, Inc.,
Rajendra Singh, Nerra Singh, 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.
<PAGE> 99
9. The Borrower has entered into a Registration Rights Agreement dated
July 25, 1996 with RF Investors, L.L.C. and MCI Telecommunications Corporation.
10. The Borrower has entered an Overhead and Administrative Services
Agreement dated August 27, 1996 with Telcom Ventures, L.L.C.
11. The Borrower has entered into an Agreement of Merger with LCC, L.L.C.
dated September 15, 1996.
12. The Borrower has entered into an Amended and Restated Securityholders
Agreement dated July 25, 1996 with Telcom Ventures, L.L.C., LCC, Incorporated,
TC Group, L.L.C., LCC, L.L.C. and MCI Telecommunications Corporation.
13. Telcom Ventures has signed a Promissory Note dated September ___, 1996
in favor of the Borrower.
OTHER SECURITYHOLDINGS
1. NextWave Telecom Inc.: LCC, L.L.C. has executed a Subscription
Agreement with NextWave Telecom Inc. for the purchase of up to 1,666,666 shares
of Series B Common Stock, purchase price equal to $5 million and pursuant to
which NextWave has agreed to issue to LCC, L.L.C. a pro rata portion of certain
warrants to purchase additional shares of Series B Common Stock at $3.00 per
share, received by NextWave for issuance to investors that executed
subscription agreements prior to the completion of the FCC C-Block auction.
2. Microcell Management, L.L.C.: LCC, L.L.C. has entered into a Joint
Venture Agreement with Microcell Management, L.L.C. ("Microcell") pursuant to
which LCC, L.L.C. has acquired a 35% membership interest in consideration of an
investment of approximately $200,000. In addition, under the Agreement, LCC,
L.L.C. may purchase up to an additional 14% interest in Microcell.
3. DCR: On March 20, 1996, LCC, L.L.C. executed a Convertible Note and
Investment Agreement with DCR for two loans of up to $6.5 million,
approximately $6.5 million of which is outstanding.
4. Communications Consulting Services Inc. ("CCS"): On January 2, 1996,
LCC, L.L.C. has executed a Convertible Note with Communication Consulting
Services Inc. for a loan in the principal amount of $150,000.
<PAGE> 100
SCHEDULE 6.10
CREDIT ARRANGEMENTS
DEBT
1. As amended on July 25, 1996, 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. As of the Closing Date, LCC, L.L.C. had the following letters of credit
issued for its account:
(a) Letter of Credit for the benefit of Computer Systems
House--Oman in the amount of $38,446.00 secured by CD #33010000013536 maturing
on 5/27/97.
(b) Letter of Credit for the benefit of Banco Del Istmo (Panama)
in the amount of $87,835.00 secured by CD # 330100000096758 maturing on
9/27/96.
(c) 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.
(d) Letter of Credit for the benefit of Office de Postes,
(Morroco) in the amount of approximately $11,706, secured by CD #33010000009685
maturing on 7/2/96.
In addition to the above letters of credit, there may be other letters
of credit that have been issued but the aggregate amount outstanding under all
outstanding letters of credit does not exceed the amount disclosed above plus
$100,000.
LIENS*
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 DARR
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 Bowes 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 Bowes Credit Corporation.
5. UCC-1 financing statement # 54682 filed on November 30, 1994 with
Arlington County, Virginia against LCC, Incorporated secured by Aristidis
Kopsidas 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 Aristidis Kopsidas 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.
<PAGE> 101
8. UCC-1 financing statement # 950224 7117 filed on February 24, 1995
with the Virginia State Corporation Commission against LCC, Incorporated
secured by Pitney Bowes 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 Bowes 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.
16. UCC-1 financing statement # 950717 7050 filed on July 17, 1995 with
the Virginia State Corporation Commission against LCC, Incorporated secured by
Pitney Bowes 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, L.L.C. 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.
<PAGE> 102
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.
28. UCC-1 financing statement #57092 filed on August 29, 1996
with Arlington County, Virginia against LCC, Inc. secured by AT&T Capital
Services 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 33.33% of Koll Telecommunications Services, L.L.C.,
a Delaware limited liability company ("Koll"). At August 31, 1996, LCC, L.L.C.
had investment in and loan to Koll for $1,859,675.
2. 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.
3. The Borrower has executed a Convertible Note and Investment Agreement
with DCR for two loans of up to $6.5 million, approximately $6.5 million of
which is outstanding.
4. The Borrower has executed a Convertible Note with Communication
Consulting Services Inc. for a loan in the principal amount of $150,000.
5. The Borrower has executed two Promissory Notes with Corporacion
MobilCom S.A. de C.V. d/b/a Tricom in the principal amounts of $1,078,000 and
$283,080.
6. The Borrower and Microcell Management, L.L.C. have entered into a
Joint Venture Agreement pursuant to which the Borrower has acquired a 35%
membership interest in Microcell Management in consideration of an investment
of approximately $200,000. In addition, under the Agreement, the Borrower may
purchase up to an additional 14% interest in Microcell.
<PAGE> 103
SCHEDULE 6.11
CONTRACTS
ALL REVENUE PRODUCING CONTRACTS
1. Agreement dated May, 1989 between LCC, Incorporated and Metrocel
Cellular Telephone Company.
2. Agreement dated August 29, 1989 between LCC, Incorporated and GTE
Mobilenet Service Corp.
3. Agreement dated May 15, 1990 as amended between LCC, Incorporated and
Hutchison Microtel Limited as amended.
4. Agreement dated March 1, 1991 and amended December 1, 1992 between
LCC, Incorporated and Bay Area Cellular Telephone Company.
5. Agreement dated March 26, 1991 between LCC, Incorporated and Alltel
Mobile Communications, Inc. as amended December 12, 1995.
6. Agreement dated April 26, 1991 and amended June 1, 1992 between LCC,
Incorporated and Telecom Securicor Cellular Radio Limited d/b/a
Cellnet.
7. Technical Collaboration Agreement Dated May 3, 1991 Between LCC,
L.L.C. and BPL Systems and Projects, Ltd.
8. Agreement dated June 27, 1991 between LCC, Incorporated and Telcel,
Radiomovil Dipsa, S.A. de C.V.
9. Agreement dated September 1, 1991 between LCC, Incorporated and
Sistemas Telefonicos Portatiles Celulares, S.A. de C.V.
10. Agreement dated September 1, 1991 between LCC, Incorporated and Santa
Cruz Cellular Telephone Company.
11. Agreement dated November 1, 1991 between LCC, Incorporated and
Telecomunicaciones del Golfo, S.A. de C.V.
12. Agreement dated November 1, 1991 between LCC, Incorporated and Bell
South Enterprises, Inc.
13. Agreement dated December 19, 1991 between LCC, Incorporated and
BellSouth Cellular Corp. on behalf of itself and its affiliate American
Cellular Communications Corporation and more particularly on behalf of
Indianapolis Telephone Company.
14. Agreement dated December 19, 1991 between LCC, Incorporated and
BellSouth Cellular Corp. on behalf of itself and its affiliate
BellSouth Mobility Inc. and more particularly on behalf of BellSouth
Mobility's Region 2.
15. Agreement dated December 19, 1991 between LCC, Incorporated and
BellSouth Cellular Corp. on behalf of itself and its affiliate American
Cellular Communications Corporation and more particularly on behalf
of Madison Cellular Telephone Company.
16. Agreement dated December 19, 1991 between LCC, Incorporated and
BellSouth Cellular Corp. on behalf of itself and its affiliate American
Cellular Communications Corporation and more particularly on behalf of
Milwaukee Telephone Company.
<PAGE> 104
17. Agreement dated December 19, 1991 between LCC, Incorporated and
BellSouth Cellular Corp. on behalf of itself and its affiliate
BellSouth Mobility Inc. and more particularly on behalf of BellSouth
Mobility's Region 3.
18. Agreement dated January 1, 1992 between LCC, Incorporated and
Southwestern Bell Mobile Systems, Inc. d/b/a Cellular One Chicago.
19. Agreement dated January 1, 1992 between LCC, Incorporated and
Southwestern Bell Mobile Systems, Inc. d/b/a Cellular One Boston.
20. Agreement dated January 1, 1992 and amended January 1, 1993 between
LCC, Incorporated and Southwestern Bell Mobile Systems, Inc. d/b/a
Cellular One Baltimore/Washington.
21. Lease Agreement dated January 12, 1992 between GBR and Eurofon Incorp.
& Co. KG.
22. Agreement dated January 31, 1992 and amended March 1, 1993 between
LCC, Incorporated and McCaw Cellular of California Inc.
23. Agreement dated January 31, 1992 between LCC, Incorporated and
Pittsburgh Cellular Telephone Company.
24. Agreement dated February 19, 1992 between LCC, Incorporated and
Motorola, Inc.
25. Agreement dated February 20, 1992 between LCC, Incorporated and
Exportables Ltda.
26. Agreement dated May 8, 1992 between LCC, Incorporated and Pacific
Northwest Cellular, Inc.
27. Amendment to International ANET Software License and Service
Agreement, June 1, 1992 between Cellnet and LCC, Incorporated.
28. Agreement dated July 1, 1992 between Telecom Solutions Incorporated
and Fleet Call, Inc.
29. Agreement dated July 15, 1992 between LCC, Incorporated and Comcast
Cellular Communications, Inc.
30. Software Agreement dated September 4, 1992 between CTCC Compani
Telephonos de Chili Cellular and LCC, Incorporated.
31. Service Agreement dated September 22, 1992 between Korean Mobile
Telecom and LCC, Incorporated.
32. Software License Agreement dated September 30, 1992 between LCC,
Incorporated and Telecomunicaciones Movilnet C.A. as amended May, 1994.
33. Agreement dated October 1, 1992 between LCC, Incorporated and Cellular
Pacific.
34. Agreement dated December 1, 1992 between LCC, Incorporated and United
States Cellular Corporation and letter agreement dated November 10,
1995.
35. Agreement dated December 18, 1992 between LCC, Incorporated and
BellAtlantic Mobile System Inc. and the following BellAtlantic
Metromobile companies: Metromobile CTS of the Northeast Inc.,
Metromobile CTS of the Southwest Inc. and Metromobile CTS of the
Southeast Inc.
36. Design Services Agreement dated January 1, 1993 between LCC,
Incorporated and Bay Area Cellular Telephone Company.
<PAGE> 105
37. Agreement dated January 1, 1993 between LCC, Incorporated and
BellSouth Mobility Inc. Region 1, an affiliate of BellSouth Cellular
Corporation.
38. Agreement dated January 1, 1993 between LCC, Incorporated and Ericsson
Systems Radio Inc.
39. Amendment to ANET and CMA Software License and Service Agreement,
January 1, 1993 between SW Bell Mobile System d/b/a Cellular One
Baltimore/Washington.
40. Service Agreement dated January 13, 1993 between Celular Movil de
Colombia and LCC, L.L.C.
41. Agreement dated February 17, 1993 between LCC, Incorporated and
Telefonica de Espana, S.A.
42. Data Licensee Agreement dated March 23, 1993 between CACI Marketing
Systems and LCC, Incorporated.
43. Software License Agreement dated March 29, 1993 between LCC,
Incorporated and Taehan Telecom Limited.
44. Agreement dated April 1, 1993 between LCC, Incorporated and Lincoln
Telephone and Telegraph Company.
45. Agreement dated April 1, 1993 between LCC, Incorporated and Telemate,
S.A.
46. Service Agreement dated April 11, 1993 between Mobile Communications
Company KSC and LCC, Incorporated.
47. Agreement dated April 14, 1993 between LCC, Incorporated and Folec
Communications Pte. Ltd.
48. Agreement dated April 15, 1993 between LCC, Incorporated and Houston
Cellular Telephone Company.
49. Agreement dated April 26, 1993 between LCC, Incorporated and MCI
Telecommunications Agreement.
50. Agreement dated April 29, 1993 between LCC, Incorporated and Millicom
Costa Rica, S. A.
51. Agreement dated May 1993 between LCC, Incorporated and Pactel
Cellular.
52. Agreement dated June 9, 1993 between Telemate and Movistar S.A.
53. Cooperation Agreement dated June 28, 1993 between LCC, Incorporated
and Telemate.
54. License and Distribution Agreement dated June 28, 1993 between LCC,
Incorporated and Telemate, S.A.
55. Marketing Agreement dated June 28, 1993 between Telemate, S.A. and
LCC, Incorporated.
56. Shareholders Agreement dated June 28, 1993 between LCC, Incorporated
and Sofrecom SA.
57. Irrevocable Promise re 16% dated June 28, 1993 between LCC,
Incorporated and Sofrecom SA.
58. Irrevocable Promise re 1% dated June 28, 1993 between LCC,
Incorporated and Sofrecom SA.
59. Agreement dated June 30, 1993 between LCC, Incorporated and BellSouth
Europe.
60. Agreement dated July 7, 1993 between LCC, Incorporated and Vanguard
Cellular Systems, Inc., and amended October 1, 1995.
<PAGE> 106
61. Agreement dated August 11, 1993 and amended October 17, 1993 between
LCC, Incorporated and Mobile Telecommunications Company.
62. Software License Agreement dated August 27, 1993 between Essen
International and LCC, Incorporated.
63. Agreement dated September, 1993 between LCC, Incorporated and Oneonta
Telephone Company.
64. Agreement dated September 1993 between LCC, Incorporated and Computer
System House, L.L.C.
65. Agreement dated September 1, 1993 between LCC, Incorporated and
Questar Telecom, Inc.
66. Agreement dated September 3, 1993 between LCC, Incorporated and
Transit Communications Corporation.
67. Agreement dated September 7, 1993 between LCC, Incorporated and Korean
Mobile Telecommunications Corporation, as amended October 16, 1995.
68. Agreement dated September 20, 1993 between LCC, Incorporated and
Martin Marietta Corporation Systems Integration Group.
69. Agreement dated October 18, 1993 between LCC, Incorporated and Grupo
Iusacell, SA de C.V.
70. Agreement dated October 26, 1993 between LCC, Incorporated and Contel
Cellular Inc.
71. Agreement dated November 5, 1993 between Compania de Telefonos de
Chile Celular S.A. and LCC, Incorporated.
72. Agreement dated November 9, 1993 and amended March 22, 1994 between
LCC, Incorporated and Powerfone, Inc.
73. Agreement dated November 30, 1993 with Addendum dated December 10,
1993 between LCC, Incorporated and Cellular, Inc.
74. Agreement dated December 8, 1993 between LCC, Incorporated and Mobikom
SDN BHD.
75. Agreement dated December 15, 1993 between LCC, Incorporated and Wipro
Systems Limited, and amended June 30, 1994.
76. Service Agreement dated December 15, 1993 between TSI, LCC,
Incorporated and Powerfone, Inc.
77. Agreement dated January 1, 1994 between Dial Call and LCC, L.L.C.
78. Agreement dated February 1, 1994 between Celular Movil de Colombia
S.A. and LCC, L.L.C.
79. Test Equipment License Agreement dated February 3, 1994 between
QUALCOMM Incorporated and LCC, L.L.C.
80. Letter Agreement dated February 10, 1994 between LCC, L.L.C. and Multi
Kontrol Nusantara.
81. Letter of Appointment between Multi Kontrol Musantara and LCC, L.L.C.
dated February 10, 1994.
82. Letter agreement dated February 17, 1994 between LCC, L.L.C. and Radio
Telephone Indonesia.
83. Service Agreement dated March 7, 1994 between TSI, L.L.C. and Dial
Call, Inc.
<PAGE> 107
84. Agreement dated March 9, 1994 between LCC, L.L.C. and Cellular
Communications de Puerto Rico Services, Inc.
85. Sales Representative Agreement between LCC, L.L.C. and Essen Telecom
Co., Ltd., dated March 21, 1994.
86. Agreement dated April 27, 1994 between LCC, L.L.C. and Westel 900 GSM
Mobile Tavkozlesi RT.
87. Software License Agreement dated April 29, 1994 between VISIX
SOFTWARE, INC. and LCC, L.L.C.
88. Agreement dated May 9, 1994 between LCC, L.L.C. and Colonial Village
Center Associates.
89. Agreement dated May 15, 1994 between LCC, Incorporated and Comcast
Cellular Communications, Inc.
90. Agreement between Qualcomm and LCC, L.L.C. dated June 1, 1994.
91. Amendment Agreement between LCC, L.L.C. and Southwestern Bell Mobile
Systems, Inc., D/B/A Cellular One Boston dated June 21, 1994.
92. Agreement dated June 24, 1994 between Telcom Ventures, L.L.C. and
Radio Movil Digital Americas, Inc.
93. Note Purchase Agreement dated June 27, 1994 between LCC, L.L.C.,
Telcom Ventures, L.L.C. and MCI Telecommunications Corporation.
94. Software License Agreement dated July 7, 1994 between Los Angeles
Cellular Telephone Company and LCC, L.L.C. and letter agreement dated
August 17, 1995.
95. Agreement dated July 15, 1994 between Omnitel Pronto Italia and LCC,
L.L.C. and amendment dated June 23, 1995.
96. Agreement dated August 1994 between Cellular Communications Network
(Malaysia) SDN. BHD., and LCC, L.L.C.
97. Agreement dated August 1, 1994 between Compania Celular de Colombia
S.A. and LCC, L.L.C.
98. Agreement dated August 12, 1994 between Sapura Holdings Sdn. Bhd., and
LCC, L.L.C. as amended by letter agreement dated November 10, 1995 as
extended on June 11, 1996.
99. Agreement dated September 1994 between Cellular Communications Network
(Malaysia) SDN. BHD., and LCC, L.L.C.
100. Joint Venture Agreement dated September 1, 1994 between Getronics
International B.V. and LCC, L.L.C. and agreement dated August 23, 1993.
101. Agreement dated October 11, 1994 and November 1, 1994 between LCC,
L.L.C. and Visix Software, Inc., and the First Amendment dated
January 1, 1995.
102. Agreement dated October 11, 1994 between Bell South International,
Inc. and LCC, L.L.C.
103. Agreement dated October 21, 1994 between LCC, L.L.C. and Airlink
Servicos e Comercio Ltda., as amended on March 28, 1996.
<PAGE> 108
104. Agreement dated October 27, 1994 between Clearnet, Inc. and TSI,
L.L.C. and amended July 7, 1995 and June 20, 1996 and a confidentiality
agreement dated October 1, 1994 as amended December 15, 1994
incorporated in the Agreement.
105. Letter of Intent between Design Institute and LCC, L.L.C. dated
October 28, 1994.
106. Agreement dated November 1, 1994 between Vertex Information &
Computer Consulting Services, Inc. ("VICCS") and LCC, L.L.C.
107. Agreement dated November 15, 1994 between Pacific Bell Mobile
Services and LCC, L.L.C.
108. Agreement dated December 20, 1994 between LibanCell, France Telecom
Mobile Liban and LCC, L.L.C.
109. Agreement dated December 20, 1994 between Allied Communications
Development, s.a.r.l. and LCC, L.L.C.
110. Agreement dated January 1, 1995 between Bell South International,
Inc. and LCC, L.L.C.
111. Agreement dated January 1, 1995 between LCC, Incorporated and
Celular de Telefonia S.A. de C.V. Mexico.
112. Side letter executed by Celumovil dated January 1, 1995.
113. Service Agreement dated January 3, 1995 between Tech Group, Inc. and
LCC, L.L.C.
114. Agreement dated January 27, 1995 between LCC, L.L.C. and Xerox
Business Services.
115. Agreement dated February 1, 1995 between Paging Network, Inc. and
LCC, L.L.C.
116. Agreement dated February 23, 1995 between GTE Mobile Communications
International Corporation and LCC, L.L.C.
117. Software License and Services Agreement dated February 24, 1995
between LCC, L.L.C. and Oracle Corporation.
118. Agreement dated March 23, 1995 between LCC, L.L.C. and McCaw
Cellular Communications, Inc.
119. Agreement dated March 8, 1995 between LCC, L.L.C. and Vectra
Technologies, Inc.
120. Affiliate Agreement dated March 24, 1995 between LCC, L.L.C. and The
Tech Group, Inc.
121. Agreement dated March 27, 1995 between LCC, L.L.C. and Lukas,
McGowan, Nace & Gutierrez.
122. Agreement between Trammell Crow Corporation Services and LCC, L.L.C.
dated March 30, 1995.
123. Agreement dated March 30, 1995 between Mobile Telecommunication
Technologies and LCC, L.L.C.
124. Affiliate Agreement between Trammell Crow and LCC, L.L.C. dated March
30, 1995.
125. Agreement dated March 30, 1995 between LCC, L.L.C. and CB Commercial
Real Estate Group, Inc. and letter of authorization dated April 21,
1995.
126. Agreement dated March 30, 1995 between LCC, L.L.C. and Vectra
Technologies, Inc.
<PAGE> 109
127. Agreement dated March 30, 1995 between LCC, L.L.C. and Koll
Telecommunications Services.
128. Master Services Agreement dated April 3, 1995 between Mobil
Telecommunication Technology Corp. and LCC, L.L.C.
129. Service Agreement dated April 13, 1995 between MajorCo, L.P. and LCC
Design Services, L.L.C.
130. Statement of Work between Network Building and Consulting Inc. dated
April 20, 1995.
131. Statement of Work between LCC, L.L.C., and Sargent and Lundy dated
April 20, 1995.
132. Scope of Work dated April 20, 1995 between Trammell Crow and LCC,
L.L.C. and letter of authorization dated April 21, 1995.
133. Letter of Authorization dated April 21, 1995 between Vectra
Technologies and LCC, L.L.C.
134. Affiliate Agreement between JEFA International and LCC, L.L.C. dated
April 21, 1995
135. Letter of Authorization between KOLL Telecommunications Services
dated April 21, 1995 and LCC, L.L.C.
136. Agreement dated April 27, 1995 between Definitive Cellular Limited
and LCC, L.L.C.
137. Software License Agreement between LCC, L.L.C. and Celular Movil de
Colombia S.A., dated April 27, 1995.
138. Letter of Authorization dated April 28, 1995 between Tower Resource
Management and LCC, L.L.C.
139. Master Services Agreement between Celcom and LCC, L.L.C., dated
April 28, 1995 and Proposal for JB ETACS Frequencey retune revised
July 31, 1995.
140. Letter Agreement dated May 3, 1995 between BPL Systems and Projects
Limited and LCC, L.L.C. as amended on December 8, 1995.
141. Service Agreement dated May 13, 1995 between Singapore Telecom
Mobile Link Private and LCC, L.L.C.
142. Service Agreement dated May 14, 1995 between Ericsson
Telecommuniczques Brazil and LCC, L.L.C.
143. Microwave Tower Prospect Registration agreement between CSX
Transportation and LCC, L.L.C. dated June 10, 1995.
144. Letter Agreement between LCC, Incorporated, and Bellsouth Cellular
Corporation, Dated June 20, 1995, amending Software license and Service
Agreement dated December 19, 1991
145. Software License Agreement between Palmer Wireless Inc., and LCC,
L.L.C. dated July 1995
146. Amended and restated Software License and Services Agreement between
TSI and NEXTEL Communications, Inc. dated July 1, 1995.
147. Agreement dated July 1, 1995 between Western Wireless Corporation
and LCC, L.L.C.
148. Letter Agreement between KIA Group and LCC, L.L.C. dated July 13, 1995
<PAGE> 110
149. Software License Agreement dated July 18, 1995 between Taehan
Telecom Limited and LCC, L.L.C.
150. Engineering Service Agreement for KMT Optimization project dated
July 21, 1995 between Taehan Telecom Limited and LCC, L.L.C. and
letter of authorization dated October 20, 1995.
151. Consulting Agreement dated July 22, 1995 between Dacom Corp. and
LCC, L.L.C.
152. Master Service Agreement dated August 1, 1995 between LG
Electronics, Inc. and LCC, L.L.C. and letter of authorization dated
August 28, 1995.
153. Consulting Services Agreement between Southern Company Services,
Inc. and TSI dated August 17, 1995.
154. Project proposal for the preparation of a tender application for a
Korean PCS application presented to DACOM Corporation, August 22, 1995
155. Management Consultant Service Agreement between Los Angeles Cellular
Telephone Company and LCC, L.L.C. dated August 24, 1995.
156. Letter of Authorization between Dacom and LCC, L.L.C., dated August
29, 1995
157. Letter Agreement between LCC, L.L.C., and Compania de Comunicaiones
del Interior, S.A. dated September 7, 1995.
158. Agreement dated September 7, 1995 as amended October 4, 1995 between
CCPI (Compana de Communicaciones Personales del Interior, S.A.) and
LCC, L.L.C.
159. Letter Agreement dated September 11, 1995 between Datawave and LCC,
L.L.C. regarding the installation of antennas on telecommunications
towers
160. Letter confirming agreement between Datawaves S.R.L. and LCC, L.L.C.
dated September 11, 1995.
161. Letter Agreement between Paul Janssen and LCC, L.L.C. dated
September 13, 1995.
162. Letter Agreement dated September 22, 1995 between Chatterjee
Management Company and LCC Incorporated.
163. Affiliate Agreement between COMCOR Advisory Services, Inc. and LCC,
L.L.C. dated September 25, 1995.
164. Contract No. TG-96-059 for Celular Speech Codec Subjective Listening
Test between LCC, L.L.C. and COMSAT Corporation
165. Amendment Number 1 to Software License Agreement between Contel
Cellular Incorporated and LCC, L.L.C.
166. Letter of Authorization between COMCOR Advisory Services, Inc. and
LCC, L.L.C. dated September 25, 1995 and letter of authorization
dated December 13, 1995 as amended on June 27, 1996.
167. Letter to confirm Agreement between Hughes Aircraft of Canada
Limited and LCC, L.L.C. dated September 27, 1995.
168. September 28, 1995 Affiliate Agreement between Associated Consulting
Service and LCC, L.L.C.
<PAGE> 111
169. Software License Agreement between LCC, L.L.C. and P.T. Rajasa
Hasanah Perkasa dated October 10, 1995.
170. Software License Agreement dated October 11, 1995 between Southern
Communications Services, Inc. and LCC, L.L.C.
171. Payment Agreement between Telcom Ventures and Principal Mutual Life
Insurance Co. dated October 13, 1995.
172. Services Agreement between Image Communications, Inc. and LCC,
L.L.C. dated October 23, 1995.
173. Agreement between TSI and Infocom Communications dated October 23,
1995
174. Contract between LCC, L.L.C. and Zhuhai New Galaxy International
Electronics Co. Ltd., dated October 28, 1995
175. Letter Service Agreement dated November 1, 1995 between Ericsson
Telecommunications.
176. Letter Agreement dated November 7, 1995 between LCC, L.L.C., Pacific
Bell Mobile Services for provision of software.
177. November 8, 1995 letter of authorization from Associated Consulting
Services to LCC, L.L.C.
178. Letter Agreement dated November 27, 1995 with KF Technologia.
179. Letter of Authorization dated December 13, 1995 between LCC, L.L.C.
and Trammell Crow Corporate Services.
180. Master Service Agreement dated December 15, 1995 between LCC, L.L.C.
and Communications Consulting Services, Inc.
181. Agency Agreement between Tawoos L.L.C. and LCC, Incorporated (no
date).
182. Agreement for Services between MAJORCO., L.P. and LCC, L.L.C. dated
December 21, 1995, as amended.
183. License Agreement dated January 1, 1996 between LCC, L.L.C. and
Southwestern Bell Systems, Inc. as a general partner for CSW Cellular
Partnership.
184. Master Services Agreement between LCC, L.L.C. and Sprint Cellular
Company date January 29, 1996.
185. Letter of Authorization between Sprint Cellular Co and LCC, L.L.C.
dated January 29, 1996
186. Engineering Services Agreement for KMT Optimization Project by and
between Taehan Telecom Limited and LCC, L.L.C. as extended by three
letter agreements.
187. Service and Equipment Supply Agreement dated February 21, 1996
between LCC, L.L.C. and Microcell Management L.L.C.
188. Agreement between Sprint and LCC, L.L.C. dated February 27, 1996.
189. Master Service Agreement between Lucent Technologies and LCC, L.L.C.
dated March 1, 1996.
190. Services Agreement dated March 12, 1996 between NextWave and LCC,
L.L.C.
<PAGE> 112
191. Affiliate Agreement between PCX Communications and LCC, L.L.C. dated
March 15, 1996
192. Agreement between MRG Management Resources, Inc. and LCC, L.L.C.
dated March 18, 1996.
193. License Agreement dated March 20, 1996 between DCR Communications,
Inc. and LCC, L.L.C.
194. Service Agreement dated March 20, 1996 between DCR Communications,
Inc. and LCC, L.L.C.
195. Service Agreement dated April 16,1996 between Northern Telcom, Inc.
and LCC Development Company, L.L.C.
196. Scope of Work Agreement dated April 20, 1996 between Network
Building Consulting Inc. and LCC, L.L.C.
197. Scope of Work Agreement dated April 30, 1996 between CB Commercial
Real Estate Group and LCC, L.L.C.
198. Service Agreement dated July 15, 1996 between LCC, L.L.C. and LG
Telecom Ltd.
199. License Agreement dated July 15, 1996 between LCC, L.L.C. and LG
Telecom Ltd.
200. Service Agreement dated June 28, 1996 between PTT Telecom B.V. and
LCC, L.L.C.
201. Engineering Services Agreement for KMT Optimization Project dated
July 29, 1996 between Essen Telecom Co. Ltd. and LCC, L.L.C.
202. License Agreement dated July 30, 1996 between LCC, L.L.C. and
Hyundai Electronics Industries Co., Ltd.
203. Master Service Agreement dated July 30, 1996 between LCC, L.L.C. and
NextWave Telecom, Inc.
204. License Agreement dated August 16, 1996 between Dacom Incorporated
and LCC, L.L.C.
205. License Agreement dated August 22, 1996 between LCC, L.L.C. and AGT
Mobility, Inc.
206. License Agreement dated August 30, 1996 between LCC, L.L.C. and
Seoul Comtech Co. Ltd.
207. License Agreement dated August 30, 1996 between LCC, L.L.C. and
Hansol PCS, Ltd.
<PAGE> 113
MATERIAL CONTRACTS*
1. Lease Agreement dated January 28, 1991 between Second Courthouse Plaza
Associates Limited Partnership and LCC, Incorporated as extended and
assigned to Telcom Ventures, L.L.C. on December, 31, 1993 and further
assigned to LCC, L.L.C. by agreement dated May 25, 1995, and Lease
Extension Agreement thereto, dated March 19, 1996.
2. Lease Agreement dated July 23, 1990 between LCC, Incorporated and Second
Courthouse Plaza Association Limited Partnership as extended and
assigned to Telcom Ventures, L.L.C. on December, 31, 1993 and further
assigned to LCC, L.L.C. by agreement dated May 25, 1995, and Lease
Extension Agreement thereto, dated March 19, 1996.
3. Employment Agreement dated September 14, 1990 between LCC, Incorporated
and Piyush Sodha.
4. Agreement dated July 17, 1992 between Telecom Solutions, Inc. and
Colonial Village Center. Associates, as amended June 10, 1994 and
assigned to Telcom Ventures, LLC on December 30, 1993 and further
assigned to LCC, L.L.C. by agreement dated September 18, 1996.
5. Lease Agreement dated October 22, 1992 between GBR and Eurofon Inc. &
Co. KG.
6. Formation Agreement dated November 16, 1993 between the Carlyle and LCC,
Incorporated, as amended.
7. Letter Agreement dated December 29, 1993 between Carlyle and LCC,
Incorporated.
8. LCC, L.L.C. 1994 Phantom Membership Plan and agreements issued pursuant
thereto.
9. LCC, L.L.C. 1994 Incentive Compensation Plan and agreements issued
pursuant thereto.
10. LCC, L.L.C. Employee Option Plan and agreements issued pursuant thereto.
11. LCC Master Contribution, Assignment and Assumption Agreement dated
January 3, 1994 between LCC, Incorporated and Telcom Ventures, L.L.C.
and related parties.
12. Limited Liability Company Agreement of LCC, L.L.C. dated January 4, 1994
as amended.
13. Sublease Agreement dated March 10, 1994 between Star Mountain, Inc. and
LCC, L.L.C.
14. Sublease Agreement dated May 7, 1994 between LCC, L.L.C. and
Minirth-Meier Byrd Clinic, P.A.
15. Lease Agreement dated May 9, 1994 between Colonial Village Center
Associates and LCC, L.L.C. as amended on May 1, 1995.
16. Note Purchase Agreement dated June 27, 1994 between Telcom Ventures,
L.L.C., LCC, L.L.C. and MCI Telecommunications Corporation.
17. Securityholders Agreement dated June 27, 1994 between Telcom Ventures,
L.L.C., LCC, L.L.C. TC Group, L.L.C., LCC, Incorporated and MCI
Telecommunications Corporation, as amended.
18. Guaranty dated June 27, 1994 between LCC, L.L.C. and MCI
Telecommunications Corporation.
19. Subordinated Note due 2000 dated June 28, 1994 between LCC, L.L.C. and
MCI Telecommunications Corporation, as amended.
20. Limited Liability Company Agreement of LCC Design Services, L.L.C. dated
August 1, 1994 as amended.
21. Sublease Agreement dated October 18, 1994 between Public Utilities
Reports Inc. and LCC, L.L.C.
22. Limited Liability Company Agreement of Koll Telecommunications Services,
L.L.C. dated December 1994.
23. Eurofon Incorp. & Co. KG Partnership Agreement.
24. Telcom Ventures Revolving Promissory Note dated May 30, 1995 between
LCC, L.L.C. and Telcom Ventures, L.L.C.
25. Memorandum and Articles of Association of LCC, United Kingdom dated June
26, 1995.
26. Promissory Note dated July 15, 1995 between Corporacion MobilCom S.A. de
C.V., d/b/a Tricom Network and LCC, L.L.C. in the amount of $283,080.00.
27. Promissory Note dated July 15, 1995 between Corporacion MobilCom S.A. de
C.V., d/b/a Tricom Network and LCC, L.L.C. in the amount of
$1,078,000.00.
28. Shareholders Rights Agreement dated November 30, 1995 between NextWave
Telcom Inc. and LCC, L.L.C.
<PAGE> 114
29. Convertible Note dated January 2, 1996 between LCC, L.L.C. and
Communication Consulting Services, Inc.
30. Stock Option Agreement dated January 2, 1996 between LCC, L.L.C. and
Communication Consulting Services, Inc.
31. Limited Liability Company Agreement of LCC Development Company, L.L.C.
dated January 24, 1996.
32. Amended and Restated Shareholders Rights Agreement dated February 1996
between NextWave Telcom Inc. and LCC, L.L.C.
33. Joint Venture Agreement dated February 21, 1996 between LCC, L.L.C. and
Microcell Management, L.L.C.
34. Letter Agreement dated March 1996 between NextWave and LCC, L.L.C.
35. Subscription Agreement dated March 12, 1996 between NextWave and LCC,
L.L.C.
36. Lease Extension Agreements dated March 19, 1996 between Second
Courthouse Associates Limited Partnership and LCC, L.L.C.
37. Convertible Loan and Investment Agreement dated March 20, 1996 between
LCC, L.L.C. and DCR Communications, Inc.
38. Series D Convertible Debenture due March 27, 2001 by DCR Communications,
Inc. dated March 27, 1996.
39. Series D Convertible Debenture due May 10, 2001 by DCR Communications,
Inc. dated May 10, 1996.
40. Agreement dated May 17, 1996, between LCC, L.L.C. and West*Park
Associates Limited Partnership.
41. Agreement dated May 17, 1996, between LCC, L.L.C. and West*Park
Associates Limited Partnership.
42. Promissory Note dated June 27, 1996 between LCC, L.L.C. and Gabrielle
Huntsinger.
43. Intercompany Agreement dated August 27, 1996 between LCC International,
Inc., Telcom Ventures, L.L.C., LCC, L.L.C., Cherrywood Holdings, Inc.,
Rajendra Singh, Nerra Singh, 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.
44. Registration Rights Agreement dated July 25, 1996 between LCC
International, Inc., RF Investors, L.L.C. and MCI Telecommunications
Corporation.
45. Overhead and Administrative Services Agreement dated August 27, 1996
between LCC International, Inc. and Telcom Ventures, L.L.C.
46. Amended and Restated Securityholders Agreement dated July 25, 1996
between LCC International, Inc., Telcom Ventures, L.L.C., LCC,
Incorporated, TC Group, L.L.C., LCC, L.L.C. and MCI Telecommunications
Corporation, as amended on September 19, 1996.
47. Agreement of Merger dated September 15, 1996 between LCC International,
Inc. and LCC, L.L.C.
48. Telcom Ventures has signed a Promissory Note dated September ___, 1996
in favor of the Borrower.
49. Stock Option Agreement dated September ___, 1996 between LCC
International, Inc. and the Carlyle Option Designees.
50. LCC International, Inc. 1996 Directors Stock Option Plan stock option
agreement and agreements issued pursuant thereto (other than Mark D.
Ein).
51. LCC International, Inc. 1996 Directors Stock Option Plan stock option
agreement for Mark D. Ein.
52. LCC International, Inc. 1996 Employee Stock Option Plan incentive stock
option agreement and agreements issued pursuant thereto.
53. LCC International, Inc. 1996 Employee Stock Option Plan non- incentive
stock option agreement and agreements issued pursuant thereto.
54. 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).
55. Phantom Membership Plan Exchange Agreement for Piyush Sodha and Donald
R. Rose.
56. Phantom Membership Plan Exchange Agreement for all other participants in
the LCC, L.L.C. 1994 Phantom Membership Plan.
57. Cross-receipt between Telcom Ventures, L.L.C. and LCC, L.L.C.
58. LCC International, Inc. 1996 Employee Stock Purchase Plan and agreements
issued pursuant thereto.
<PAGE> 115
59. LCC International, Inc. 1996 Director Indemnity Agreements with
Directors.
60. Stock Option Agreement dated September ___, 1996 for directors who will
receive Class B Common Stock.
61. Letter Agreement dated August 22, 1996 between LCC International, Inc.
and Arno Penzias.
62. Notice of Assignment of Subordinated Note Due 2000 dated __________,
1996 from Telcom Ventures, L.L.C. and LCC International, Inc. to MCI
Telecommunications Corporation.
63. Second Amendment to Subordinated Note Due 2000 dated ____________, 1996
by Telcom Ventures, L.L.C. and LCC International, Inc. payable to MCI
Telecommunications.
64. Third Amendment to Subordinated Note Due 2000 dated ____________, 1996
by Telcom Ventures, L.L.C. and LCC International, Inc. payable to MCI
Telecommunications.
------------------------------
* All revenue-producing contracts, some of which are Material Contracts,
are listed above in this Schedule 6.11
<PAGE> 116
SCHEDULE 6.12
PROPRIETARY RIGHTS
TRADE AND SERVICE MARKS OF THE BORROWER
<TABLE>
<CAPTION>
Mark TM/ Serial Registration Registration
- ---- SM Number Date/Status Number
-- ------ ----------- ------
<S> <C> <C> <C> <C>
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 1603762
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 Filed and Under Review by
Trademark office n/a
RSAT TM 73/818914 04/17/90 1501831
RSAT-PLUS TM 74/118833 10/29/91 1662324
RSAT 2000 TM 74/306751 04/13/93 1764314
DESKCAT TM n/a Preparing application n/a
AQS TM n/a Preparing application n/a
</TABLE>
<PAGE> 117
COPYRIGHTS OF THE BORROWER
<TABLE>
<CAPTION>
LCC Software Programs Copyright Registration No. Expiration Date
--------------------- -------------------------- ---------------
<S> <C> <C>
CMA 3 592-612 July 1, 2168
CellTRAC 3 579-231 July 1, 2168
ANET 3 582-718 July 1, 2168
CellSIGHT 3 561-058 August 13, 2168
CellCAD 3 594-400 July 1, 2168
Microstore n/a n/a
CellQuest n/a n/a
CellCONNECT n/a n/a
COLLECT n/a n/a
</TABLE>
PATENTS OF THE BORROWER
1. U.S. Serial Number 08-381,495
Filed: January 31, 1995
Description: Digital Call Quality
2. U.S. Serial Number: n/a
Filed: Sept. 20, 1996
Description: Polarization Diversity Antenna Array
TRADE OR CORPORATE NAMES OF LCC CORPORATE ENTITIES
1. LCC, L.L.C.
2. LCC, United Kingdom
3. LCC Development Company, L.L.C.
4. Eurofon de France S.A.R.L.
5. Eurofon Incorp. & Co. K.G.
6. LCC Design Services, L.L.C.
7. LCC, U.S.A. L.L.C.
8. LCC Solutions, L.L.C.
9. LCC International, Inc.
10. Cherrywood Holdings, Inc.
11. RF Investors, L.L.C.
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.
<PAGE> 118
STEPS TAKEN TO PROTECT PROPRIETARY INFORMATION
Prior to commencement of employment with LCC, L.L.C., LCC, L.L.C.'s
employees each sign an agreement which: (i) protects LCC, L.L.C.'s proprietary
and confidential information and prohibits disclosure of such LCC, L.L.C.
information and (ii) establishes LCC, L.L.C.'s ownership of any work product of
LCC, L.L.C. 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, L.L.C.
LCC, L.L.C. 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, L.L.C. provides its proprietary software products to clients who
have executed a comprehensive licensing agreement that has provisions that
establishes LCC, L.L.C.'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, L.L.C.
In addition, LCC, L.L.C. customers, among other things, agree not to:
(i) reverse engineer, disassemble, decompile, interrogate or decode LCC,
L.L.C.'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,
L.L.C. of the software, either as a complete or partial defense to any claim
made by LCC, L.L.C. or any third party, or (v) take any action which may
prejudice the validity of LCC, L.L.C.'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, L.L.C.'s Software.
<PAGE> 119
SCHEDULE 6.16
LABOR DISPUTES, ETC.
1. Katyal v. LCC, L.L.C., Arco No. 96-042-3, EEOC No. 10B-95-0117
2. Taylor v. LCC, Inc., Arco No. 96-145-E, EEOC No. 10B-96-0082.
<PAGE> 120
SECURITY AGREEMENT
SCHEDULE A
PLACES OF BUSINESS
1. Principal place of business, chief executive office and location of
books and records:
LCC, L.L.C.
2300 Clarendon Blvd., Suite 800
Arlington, Virginia 22201
LCC Design Services, L.L.C.
2300 Clarendon Blvd., Suite 800
Arlington, Virginia 22201
LCC Development Company, L.L.C.
2300 Clarendon Blvd., Suite 800
Arlington, Virginia 22201
On May 17, 1996, LCC, L.L.C. entered into a lease agreement
with West*Park Associates Limited Partnership for a new
principal place of business and chief executive office at 7925
Jones Branch Drive, McLean, Virginia, 22102. The anticipated
date of effectiveness is February 1997. LCC, L.L.C. also has
entered into a lease agreement with West*Park Associates
Limited Partnership for the leasing of approximately 10,245
sq. ft. of office space at 7927 Jones Branch Drive, McLean,
Virginia, 22102. The anticipated date of effectiveness is
June 1997.
2. Other Places of Business where Collateral is currently located:
LB&B
9151 G. Red Branch Rd.
Columbia, MD 21045
Berkeley Variatronics
255 Forest Street
Metuchen N.J. 08840
Manufacturing Techniques
Route 1, Box 2683
Reedville, VA 22539
Polyfab Corp.
8919 McGaw Court
Columbia MD, 21045
BHB Creative Cabling
5702 Industry Lane #A42
Frederick, MD 21704
Fieldtex Products
4 Elton Street
Rochester, NY 14607
Delta Cable
123 Roesler Rd.
Glen Burnie, MD 21060
<PAGE> 121
EWA-Manufacturing Services
357 Industrial Park Road
Beaver, WV 25813
Develop Manufacture Test
P.O. Box 183
Germantown, MD 20874
Science & Technology Res. Inc.
7210 Pindell School Road
Fulton, MD 20759-9721
3. Other Locations of Equipment:
LCC, L.L.C.
2111 Wilson Blvd.
Arlington, Virginia 22201
<PAGE> 122
INTELLECTUAL PROPERTY SECURITY AGREEMENT
SCHEDULE A
PROPRIETARY RIGHTS
1. COPYRIGHTS OF THE BORROWER
<TABLE>
<CAPTION>
LCC Software Programs Copyright Registration No. Expiration Date
--------------------- -------------------------- ---------------
<S> <C> <C>
CMA 3 592-612 July 1, 2168
CellTRAC 3 579-231 July 1, 2168
ANET 3 582-718 July 1, 2168
CellSIGHT 3 561-058 August 13, 2168
CellCAD 3 594-400 July 1, 2168
Microstore n/a n/a
CellQuest n/a n/a
CellCONNECT n/a n/a
COLLECT n/a n/a
</TABLE>
2. PATENTS OF THE BORROWER
1. U.S. Serial Number 08-381,495
Filed: January 31, 1995
Description: Digital Call Quality
3. TRADE AND SERVICE MARKS OF THE BORROWER
<TABLE>
<CAPTION>
Mark TM/ Serial Registration Registration
--- SM Number Date/Status Number
-- ------ ----------- ------
<S> <C> <C> <C> <C>
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 1603762
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
</TABLE>
<PAGE> 123
<TABLE>
<S> <C> <C> <C> <C>
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 Under Review by Trademark office n/a
RSAT TM 73/818914 04/17/90 1501831
RSAT-PLUS TM 74/118833 10/29/91 1662324
RSAT 2000 TM 74/306751 04/13/93 1764314
DESKCAT TM n/a Preparing application n/a
AQS TM n/a/ Preparing application n/a
</TABLE>
TRADE OR CORPORATE NAMES OF LCC CORPORATE ENTITIES
1. LCC, L.L.C.
2. LCC, United Kingdom
3. LCC Development Company, L.L.C.
4. Eurofon de France S.A.R.L.
5. Eurofon Incorp. & Co. K.G.
6. LCC, U.S.A. L.L.C.
7. LCC Solutions, L.L.C.
8. LCC International, Inc.
9. Cherrywood Holdings, Inc.
10. RF Investors, L.L.C.
<PAGE> 124
OBLIGORS PLEDGE AGREEMENT
SCHEDULE A
SECTION 3.01
1. DCR Debentures.
2. Convertible Note in the principal amount of $150,000 issued by
Communication Consulting Services Inc. to the Borrower.
3. Promissory Notes in the principal amounts of $1,078,000 and $283,080
issued by Corporacion MobilCom S.A. de C.V. d/b/a Tricom to the Borrower.
4. 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.
5. 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.
6. All of the membership interests in Eurofon Incorp. & Co. KG held by the
Borrower. The Borrower owns 80% of the membership interests in Eurofon
Incorp. & Co. KG.
7. 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.
8. 65% of the outstanding ordinary shares of LCC, United Kingdom. The
Borrower owns 99% of the outstanding ordinary shares of LCC, United
Kingdom.
9. 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.
10. 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.
<PAGE> 1
EXHIBIT 10.58
REVOLVING CREDIT NOTE
$20,000,000 New York, New York
September , 1996
For value received, LCC INTERNATIONAL, INC., a corporation organized
under the laws of Delaware (the "Borrower"), hereby promises to pay to the
order of THE CHASE MANHATTAN BANK (the "Lender"), at the principal office of
The Chase Manhattan Bank at 1 Chase Manhattan Plaza, New York, New York 10081,
as administrative agent for the Lender (in such capacity, together with its
successors in such capacity, the "Administrative Agent"), for the account of
the appropriate Lending Office of the Lender, the principal sum of Twenty
Million and 00/100 Dollars $20,000,000) or, if less, the amount loaned by the
Lender to the Borrower pursuant to the Credit Agreement referred to below, in
lawful money of the United States of America and in immediately available
funds, on the date(s) and in the manner provided in the Credit Agreement
referred to below. The Borrower also promises to pay interest on the unpaid
principal balance hereof, for the period such balance is outstanding, at said
principal office for the account of said Lending Office, in like money, at the
rates of interest as provided in the Credit Agreement described below, on the
date(s) and in the manner provided in said Credit Agreement.
The date and amount of each type of Revolving Credit Loan made by the
Lender to the Borrower under the Credit Agreement referred to below, and each
payment of principal thereof, shall be recorded by the Lender on its books and,
prior to any transfer of this Revolving Credit Note (or, at the discretion of
the Lender, at any other time), endorsed by the Lender on the schedule attached
hereto or any continuation thereof.
This is one of the Revolving Credit Notes referred to in that certain
Amended and Restated Credit Agreement dated as of September , 1996 (as
amended or supplemented from time to time, the "Credit Agreement") among the
Borrower, LCC Design Services, L.L.C., a Delaware limited liability company,
LCC Development Company, L.L.C., a Delaware limited liability company
(collectively, the "Subsidiary Guarantors"), each of the lenders which is
signatory thereto (including the Lender) and the Administrative Agent and
evidences the Revolving Credit Loans made by the Lender thereunder which shall,
in the aggregate amount among all such Revolving Credit Notes, not exceed
$20,000,000. All terms not defined herein shall have the meanings given to
them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
principal upon the occurrence of certain Events of Default and for prepayments
on the terms and conditions specified therein.
<PAGE> 2
The Borrower waives presentment, notice of dishonor, protest and any
other notice (except as provided in the Facility Documents) with respect to
this Revolving Credit Note.
This Revolving Credit Note is secured in accordance with, and entitled
to the benefits of, the Security Documents.
All obligations evidenced by this Revolving Credit Note are guaranteed
by the Subsidiary Guarantors pursuant to, and subject to the terms and
conditions of, Article 11 of the Credit Agreement.
This Revolving Credit Note shall be governed by, and interpreted and
construed in accordance with, the laws of the State of New York.
LCC INTERNATIONAL, INC.,
a Delaware corporation
By:
-----------------------------
Name:
Title:
-2-
<PAGE> 3
<TABLE>
<CAPTION>
Amount of Amount of Balance Notation
Date Loan Payment Outstanding By
---- ---- ------- ----------- --
<S> <C> <C> <C> <C>
</TABLE>
<PAGE> 1
EXHIBIT 10.59
SUBORDINATION AND INTERCREDITOR AGREEMENT
SUBORDINATION AND INTERCREDITOR AGREEMENT, dated as of September
, 1996 (this "Intercreditor Agreement"), made and entered into by and among THE
CHASE MANHATTAN BANK, a New York bank, as administrative agent (in such
capacity, together with its successors and assigns in such capacity, the
"Senior Creditor Representative") for the benefit of each of the lenders
(together with their respective successors and assigns, the "Senior Creditors")
a party to the Amended and Restated Credit Agreement dated as of September
, 1996 (as from time to time amended, modified or supplemented in accordance
with the terms thereof, the "Senior Credit Agreement"), MCI TELECOMMUNICATIONS
CORPORATION, a Delaware corporation ("MCI" and, together with its successors
and assigns, the "Subordinated Creditor"), and LCC INTERNATIONAL, INC., a
Delaware corporation (together with its successors and assigns, the "Company").
W I T N E S S E T H:
WHEREAS, (a) pursuant to a Note Purchase Agreement dated as of June
27, 1994, among the Company, Telcom Ventures, L.L.C., a Delaware limited
liability company (the "Parent") and the Subordinated Creditor (as amended by
that certain Waiver and Amendment dated as of May 30, 1995, the "Subordinated
Note Agreement"), (i) the Parent has issued and sold to the Subordinated
Creditor its convertible Subordinated Note Due 2000 in the principal amount of
$30,000,000 as amended by that certain Amendment to Subordinated Note due 2000
dated as of July 25, 1996 among the Parent, the Company and the Subordinated
Creditor, as further amended by that certain Second Amendment to Subordinated
Note due 2000 dated as of September , 1996 among the Parent, the Company and
the Subordinated Creditor, as further amended by the Third Amendment to
Subordinated Note due 2000 dated as of September , 1996 among the Parent,
the Company and the Subordinated Creditor and as may be from time to time
further amended, modified or supplemented in accordance with the terms thereof,
the "Telcom Note") and (ii) the Company has issued and sold to the Subordinated
Creditor its convertible Subordinated Note Due 2000 in the principal amount of
$20,000,000 (as amended by that certain Amendment to Subordinated Note due 2000
dated as of July 25, 1996, and as may be from time to time further amended,
modified or supplemented in accordance with the terms thereof, the "LCC Note"
and, together with the Telcom Note, the "Subordinated Notes") and (b) pursuant
to a Securityholders Agreement, dated as of June 27, 1994 (the "June 27, 1994
Securityholders Agreement" and, as amended by that certain Waiver and Amendment
dated as of May 30, 1995, as amended and restated by that certain
<PAGE> 2
Amended and Restated Securityholders Agreement dated as of July 25, 1996, as
further amended by that certain Amendment to Amended and Restated
Securityholders Agreement dated as of September , 1996 and as may be from
time to time further amended, modified or supplemented in accordance with the
terms thereof, the "Securityholders Agreement"), among the Parent, LCC,
Incorporated, TC Group, L.L.C., the Company and the Subordinated Creditor;
WHEREAS, on the date hereof, the Company, LCC Design Services, L.L.C.,
LCC Development Company, L.L.C., the Senior Creditor Representative and the
Senior Creditors are entering into the Senior Credit Agreement, pursuant to
which the Senior Creditors have agreed to extend credit to the Company upon the
terms and subject to the conditions set forth therein to be evidenced by the
Notes issued by the Company thereunder and the Letters of Credit issued
thereunder in the maximum aggregate principal amount of $20,000,000
(collectively, as from time to time amended, modified or supplemented in
accordance with the terms thereof, the "Senior Notes");
NOW, THEREFORE, in order to induce the Senior Creditors to enter into
the Senior Credit Documents (as hereinafter defined), and pursuant to Section
5.01(c) of the Senior Credit Agreement, the Company and the Subordinated
Creditor hereby agree with the Senior Creditor Representative that, until the
Senior Debt (as hereinafter defined) shall have been paid in full in cash, the
Company and the Subordinated Creditor Representative each will comply with such
of the following provisions as are applicable to it:
1. Definitions.
Capitalized terms used in this lntercreditor Agreement without
definition shall have the respective meanings ascribed to them in the Senior
Credit Agreement, as in effect on the date hereof. As used in this
Intercreditor Agreement, the terms set forth below shall have the following
meanings:
"Reorganization Securities" means securities of the Company or any
other Person provided for by a plan of reorganization, composition,
arrangement, adjustment or readjustment of the Company or of its securities,
and issued or distributed in any bankruptcy or other proceeding referred to in
Section 2.2 hereof, to the extent consisting of (a) shares of common stock, or
warrants or rights to purchase shares of common stock, of the Company or such
other Person, or (b) debt securities of the Company or such other Person,
provided that (i) such debt securities shall mature no earlier than the later
of (x) June 28, 2000 and (y) the first anniversary of the final stated maturity
date of any debt securities issued or distributed to the holders of Senior Debt
pursuant to such plan of reorganization,
2
<PAGE> 3
composition, arrangement, adjustment or readjustment, (ii) the covenants,
events of default, representations, warranties and other provisions contained
in such debt securities and in any agreements, instruments and documents
executed pursuant to or in connection therewith shall be substantially similar
to, and not more burdensome to the Company than, the corresponding provisions
with respect to the Subordinated Debt contained in the Subordinated Notes, and
(iii) the payment of such debt securities shall be subordinate and subject, at
least to the extent provided in this Intercreditor Agreement with respect to
the Subordinated Debt, to the payment of all Senior Debt of the Company at the
time outstanding, and to the payment of all securities issued in exchange
therefor to the holders of such Senior Debt at the time outstanding.
"Senior Credit Documents" means the Senior Credit Agreement, the
Senior Notes and all notes, security agreements, pledge agreements, mortgages,
indentures, deeds of trust, letters of credit, interest rate protection
agreements, currency protection agreements, financing statements, Guaranties
and other agreements, instruments and documents now or hereafter executed
pursuant thereto or in connection therewith, and all credit agreements, loan
agreements, notes, mortgages, indentures, deed of trusts, security agreements,
pledge agreements, letters of credit, interest rate protection agreements,
currency protection agreements, financing statements, Guaranties and other
agreements, instruments and documents hereafter executed in connection with any
extension, renewal, refunding or refinancing thereof, as any of the same may
hereafter from time to time be amended, modified or supplemented in accordance
with the terms thereof.
"Senior Debt" means (a) the principal amount of Debt now or hereafter
incurred by the Company under the Senior Credit Documents, (b) prepayment
charges, if any, payable with respect thereto, (c) interest thereon (including,
without limitation, interest accruing subsequent to the commencement by or
against the Company of any proceeding under the Bankruptcy Code, whether or not
such interest is allowed as a claim in such proceeding), (d) all obligations of
any Person under any Guaranty of any of such Debt now or hereafter executed
pursuant to the Senior Credit Documents, and (e) all fees (including, without
limitation, attorneys' fees), costs, expenses, indemnities and other amounts
now or hereafter payable pursuant to the terms of or in connection with any of
the Senior Credit Documents.
"Senior Default" means any Default or Event of Default as defined in
Section 10.01 of the Senior Credit Agreement, or as defined in any comparable
provision of any subsequent or successor agreement hereafter executed in
connection with any extension, renewal, refunding or refinancing of Senior
Debt.
3
<PAGE> 4
"Senior Payment Default" means any Senior Default occurring by reason
of the failure of the Company to pay when due all or any part of the principal
amount of the Senior Debt, interest thereon, or any fees payable under the
Senior Credit Documents.
"Subordinated Debt" means the principal amount of all Debt of the
Company now or hereafter outstanding under the Subordinated Note Documents
together with interest thereon and prepayment charges (if any) payable with
respect thereto, all fees, costs, expenses, indemnities and other amounts now
or hereafter payable pursuant to the terms of or in connection with any of the
Subordinated Note Documents, and all obligations of the Company or any other
Person under any Guaranty of any of such Debt now existing or hereafter
executed pursuant to the Subordinated Note Agreement or otherwise.
"Subordinated Debt" shall also include, without limitation, any obligation or
claim with respect to an optional or mandatory prepayment or redemption of the
Subordinated Notes and any obligation or claim (whether for rescission or
damages and whether based on contract, tort, duty imposed by law, or any other
theory of liability) relating to or arising out of the offer, issuance or sale
of the Subordinated Notes or the execution or delivery of any Guaranties or
other instruments issued by the Company pursuant to any of the Subordinated
Note Documents. "Subordinated Debt" shall not include the obligation of the
Company to issue, and the obligation of the Parent to transfer, to the
Subordinated Creditor, Capital Stock in the Company upon exchange of either of
the Subordinated Notes under Section 3 thereof; provided, however, that any
payment obligation of the Company that arises under the Subordinated Note
Documents upon such issuance or transfer shall be included as "Subordinated
Debt."
"Subordinated Default" means (i) any Event of Default as defined in
Section 4(a) of either of the Subordinated Notes, and (ii) any other breach of,
or default under, any provision of any of the Subordinated Note Documents.
"Subordinated Note Documents" means the Subordinated Note Agreement,
the Subordinated Notes, the Securityholders Agreement and all other agreements,
instruments and documents now existing or hereafter executed pursuant to or in
connection with the Subordinated Note Agreement, as any of the same may
hereafter from time to time be amended, modified or supplemented in accordance
with the terms thereof.
2. Subordination.
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<PAGE> 5
2.1. Subordinated Debt Subordinated to Senior Debt. Each of the
Company and the Subordinated Creditor, for itself and its successors and
assigns (including without limitation all subsequent holders of Subordinated
Debt), covenants and agrees, that the payment of the Subordinated Debt shall be
subordinate and subject in right of payment, to the extent and in the manner
hereinafter set forth, to the prior payment in full in cash of all Senior Debt,
and that each holder of Senior Debt, whether now outstanding or hereafter
created, incurred, assumed or guaranteed, shall be deemed to have acquired
Senior Debt in reliance upon the provisions contained in this lntercreditor
Agreement.
2.2. Subordinated Debt Subordinated to Prior Payment of All
Senior Debt on Dissolution, Liquidation, Reorganization, Etc. Upon any payment
or distribution of the assets of the Company of any kind or character, whether
in cash, property or securities from any source whatsoever (including any
collateral, and proceeds thereof whether in cash or in kind, at any time
securing the Subordinated Debt, and including any payment or distribution that
is payable by reason of the payment of any other Debt of the Company being
subordinated to the payment of the Subordinated Debt), to creditors upon any
dissolution, winding-up, total or partial liquidation, reorganization,
composition, arrangement, adjustment or readjustment of the Company or its
securities (whether voluntary or involuntary, or in bankruptcy, insolvency,
reorganization, liquidation or receivership proceedings, or upon an assignment
for the benefit of creditors, or any other marshalling of the assets and
liabilities of the Company, or otherwise), then in such event:
(i) the holders of the Senior Debt shall be entitled
to receive payment in full in cash of all amounts due or to become due
on or in respect of all Senior Debt, before any payment is made on
account of or applied on the Subordinated Debt;
(ii) any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities from any source whatsoever (other than Reorganization
Securities), to which the holders of the Subordinated Debt would be
entitled except for the provisions of this Section 2, shall be paid or
delivered by any debtor, custodian, liquidating trustee, agent or
other Person making such payment or distribution, directly to the
holders of such Senior Debt, or their representative or
representatives, ratably according to the aggregate amounts remaining
unpaid on account of the principal of and interest on such Senior Debt
held or represented by each, for application to the payment of all
such Senior Debt remaining unpaid, to the extent necessary to pay all
such Senior Debt in full in cash after giving effect to any concurrent
payment or distribution to the holders of such Senior Debt; and
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<PAGE> 6
(iii) in the event that, notwithstanding the foregoing
provisions of this Section 2.2, any payment or distribution of assets
of the Company or the Parent of any kind or character, whether in
cash, property or securities from any source whatsoever (other than
Reorganization Securities), shall be received by any holder of
Subordinated Debt before all such Senior Debt is paid in full in cash,
such payment or distribution shall be held in trust for the benefit
of, and shall immediately be paid or delivered by such holder to, as
the case may be, the holders of such Senior Debt remaining unpaid, or
their representative or representatives, for application to the
payment of all such Senior Debt remaining unpaid, ratably according to
the aggregate amounts remaining unpaid on account of such Senior Debt
held or represented by each, to the extent necessary to pay all such
Senior Debt in full in cash after giving effect to any concurrent
payment or distribution to the holders of such Senior Debt.
Upon any distribution of assets of the Company referred to in this
Section 2.2, the holders of Subordinated Debt shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction in which such
bankruptcy, insolvency, reorganization, liquidation, receivership or other
proceeding is pending, or a certificate of the debtor, custodian, liquidating
trustee, agent or other Person making any distribution to such holders, for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Section 2.2.
2.3. No Payments With Respect to Subordinated Debt in Certain
Circumstances; Restrictions on Remedies.
(a) No payment on account of the Subordinated Debt or any
judgment with respect thereto shall be made by or on behalf of the Company if,
at the time such payment is to be made, any Senior Payment Default shall have
occurred, and such Senior Payment Default shall not have been cured or waived
in accordance with the applicable provisions of the Senior Credit Documents.
(b) In the event that at any time any holder of Senior Debt, or
Person duly acting as agent or representative of the holders of Senior Debt,
shall give written notice (each a "Payment Bar Notice") to the Company and MCI
of the occurrence of any Senior Default other than a Senior Payment Default, no
payment on account of the Subordinated Debt or any judgment with respect
thereto shall be made by or on behalf of the Company during the period (each a
"Payment Bar Period") commencing on the date of receipt by the Company of such
Payment Bar
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<PAGE> 7
Notice and ending on the earlier of (i) the date (if any) on which such Senior
Default shall be cured (if capable of being cured) or waived in accordance with
the applicable provisions of the Senior Credit Documents, and (ii) the 180th
consecutive day following the date of receipt by the Company of such Payment
Bar Notice: provided, however, that following receipt by the Company of any
Payment Bar Notice, no additional or further Payment Bar Notice may be given
until the 90th consecutive day following the date of expiration or termination
of the Payment Bar Period that shall have commenced on the date of receipt of
such Payment Bar Notice.
(c) Following any acceleration of the maturity of any Senior
Debt and as long as such acceleration shall continue unrescinded and
unannulled, such Senior Debt shall first be paid in full in cash before any
payment is made on account of or applied to the Subordinated Debt.
(d) Following any acceleration of the maturity of any
Subordinated Debt, and as long as such acceleration shall continue unrescinded
and unannulled, all Senior Debt shall first be paid in full in cash before any
payment is made on account of or applied on the Subordinated Debt.
(e) In the event that, notwithstanding the foregoing provisions
of this Section 2.3, any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, from any source
whatsoever, shall be received by any holder of Subordinated Debt contrary to
the foregoing provisions of this Section 2.3, such payment or distribution
shall be held in trust for the benefit of, and shall be immediately paid or
delivered by such holder to, as the case may be, the holders of such Senior
Debt remaining unpaid, or their representative or representatives, for
application to the payment or prepayment of all such Senior Debt remaining
unpaid, ratably according to the aggregate amounts remaining unpaid on account
of the Senior Debt held or represented by each, to the extent necessary to pay
all such Senior Debt in full in cash after giving effect to any concurrent
payment or distribution to the holders of such Senior Debt.
(f) If (i) no Senior Payment Default has occurred which has not
been cured or waived (including any Senior Payment Default as may occur upon an
acceleration of the maturity of any Senior Debt), (ii) no Payment Bar Period
has commenced and is continuing and (iii) the maturity of any Subordinated Debt
has not been accelerated (or any such acceleration has been rescinded), the
Company may pay, and the Subordinated Creditor may receive and retain any
regularly scheduled payments of interest under the Subordinated Notes.
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<PAGE> 8
(g) Notwithstanding the occurrence and continuance of any
Subordinated Default, no holder of Subordinated Debt shall take any action to
(i) accelerate the maturity of all or any of the Subordinated Debt, (ii)
commence or join in the commencement of any involuntary proceeding under the
Bankruptcy Code against the Company, (iii) commence, prosecute or participate
in any other legal or equitable judicial, administrative, arbitration or other
proceeding against the Company or any of its Property seeking to collect any of
the Subordinated Debt or to enforce any of their other rights as holders of the
Subordinated Debt, (iv) take any action to create or perfect any Lien on any of
the Company's real or personal Property to secure any of the Subordinated Debt
or any judgment in respect thereto, (v) enforce or apply any Lien now or
hereafter existing securing any of the Subordinated Debt, or (vi) exercise any
other rights or remedies under the provisions of the Subordinated Note
Documents, or at law or in equity or otherwise, which it may have by reason of
the occurrence and continuance of any Subordinated Default, until (x) the
Company and the holders of Senior Debt shall have received written notice from
the holders of a majority of the outstanding principal amount of the
Subordinated Debt, or any agent or representative acting on behalf of such
holders, of the occurrence of such Subordinated Default specifying what action
such holders intend to take in respect thereto, and 180 days shall have elapsed
after the date of receipt of such notice and such Subordinated Default shall
then be continuing, or (y) if earlier, the date on which the maturity of the
Senior Debt shall have been accelerated in accordance with the terms of the
Senior Credit Documents. Notwithstanding anything to the contrary herein,
there shall be no restriction on the ability of the Subordinated Creditor to
exchange the Subordinated Notes under Section 3 thereof.
(h) The Company shall give prompt written notice to each holder
of outstanding Subordinated Debt of the occurrence of any Senior Default and of
any acceleration of the maturity of any Senior Debt, but no failure or delay by
the Company in giving any such notice shall affect the rights hereunder of the
holders of Senior Debt. The Senior Creditor Representative shall also endeavor
to give written notice of any acceleration of the maturity of any Senior Debt
to MCI, but no failure or delay by the Senior Creditor Representative in giving
any such notice shall affect the rights hereunder of the holders of the Senior
Debt.
2.4. Holders of Subordinated Debt to be Subrogated to Rights of
Holders of Senior Debt. Subject to the prior payment in full in cash of all
Senior Debt, the holders of the Subordinated Debt shall be subrogated to the
rights of the holders of Senior Debt to receive payments or distributions of
assets of the Company applicable to the Senior Debt and the security interest
of the holders of Senior Debt until the Subordinated Debt shall be paid in
full, and for purposes of such subrogation, no payment or distribution to the
holders of the Senior Debt of assets,
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<PAGE> 9
whether in cash, property or securities, distributable to the holders of Senior
Debt under the provisions hereof to which the holders of the Subordinated Debt
would be entitled except for the provisions of this Section 2, and no payment
pursuant to the provisions of this Section 2 to the holders of Senior Debt by
the holders of the Subordinated Debt shall, as between the Company, their
creditors other than the holders of the Senior Debt and the holders of the
Subordinated Debt, be deemed to be a payment by the Company to or on account of
such Senior Debt, it being understood that the provisions of this Section 2
are, and are intended, solely for the purpose of defining the relative rights
of the holders of the Subordinated Debt, on the one hand, and the holders of
Senior Debt, on the other hand.
2.5. Obligations of the Company Unconditional. Nothing
contained in this Section 2 or elsewhere in this lntercreditor Agreement or in
the Subordinated Note Documents is intended to or shall impair, as between the
Company and its creditors other than the holders of Senior Debt, the
obligations of the Company to the holders of the Subordinated Debt to pay the
Subordinated Debt as and when it shall become due and payable in accordance
with its terms, or is intended to or shall affect the relative rights of the
holders of the Subordinated Debt and creditors of the Company other than the
holders of Senior Debt, nor shall anything herein or therein (except as
otherwise expressly provided in this lntercreditor Agreement) prevent any
holder of Subordinated Debt from exercising all remedies otherwise permitted by
applicable law upon the happening of a Subordinated Default, subject to the
rights, if any, under this Section 2 of the holders of Senior Debt in respect
to assets, whether in cash, property or securities, of the Company received
upon the exercise of any such remedy. The failure of the Company to make
payment on account of the Subordinated Debt by reason of any provision of this
Section 2 shall not be construed as preventing the occurrence or continuance of
a Subordinated Default under the Subordinated Note Documents.
3. Reinstatement. To the extent any payment of Senior Debt
(whether by or on behalf of the Company, as proceeds of security or enforcement
of any right of setoff or otherwise) is declared to be fraudulent or
preferential, set aside, rescinded or required to be paid to a trustee,
receiver, debtor in possession or other similar party under any bankruptcy,
insolvency, receivership or similar law, then to the extent such payment is
recovered by, or paid over to, such trustee, receiver, debtor in possession or
other similar party, the Senior Debt or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred. All Senior Debt shall be and remain Senior Debt for all
purposes of this lntercreditor Agreement, whether or not subordinated, in any
bankruptcy, insolvency, reorganization, liquidation, receivership, assignment
for the benefit of creditors or similar proceeding.
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<PAGE> 10
4. No Waiver of Subordination Provisions. Except with the
prior written consent of the Subordinated Creditor, the Company will not incur
Senior Debt in an aggregate principal amount in excess of $20,000,000. Except
in the case of a breach of the agreement with the Subordinated Creditor set
forth in the immediately preceding sentence of this Section 4, no right of any
holder of Senior Debt to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of the Company, or by any act or failure to act on the part of any such
holder or holders, or by any noncompliance by the Company with the terms,
provisions and conditions of the Senior Credit Documents regardless of any
knowledge thereof which the holders of Senior Debt, or any of them, may have or
be otherwise charged with. Without in any way limiting the generality of the
foregoing, the holders of Senior Debt, or any of them, may, at any time and
from time to time, without the consent of or notice to the holders of the
Subordinated Debt, without incurring any liabilities to any such holders and
without impairing or releasing the subordination and other benefits provided in
this Intercreditor Agreement or the obligations hereunder of the holders, of
Subordinated Debt to the holders of Senior Debt, even if any right of
reimbursement or subrogation or other right or remedy of any holder of the
Subordinated Debt is affected, impaired or extinguished thereby, do any one or
more of the following:
(i) change the manner, place or terms of payment or
change or extend the time of payment of, or renew, exchange, amend,
increase or alter, the terms of any Senior Debt, any security therefor
or Guarantee thereof or any liability of the Company to such holder,
or any liability incurred directly or indirectly in respect thereof,
or otherwise amend, renew, exchange, extend, modify, increase or
supplement in any manner Senior Debt or any instrument evidencing or
guaranteeing or securing the same or any agreement under which Senior
Debt is outstanding; provided, however, that, except with the prior
written consent of the Subordinated Creditor, no increase in the
principal amount of the Senior Debt which would result in the
aggregate outstanding principal amount of Senior Debt to exceed
$20,000,000, and no extension of the maturity date of the Senior Debt
beyond December 31, 2010 may be effected without the prior written
consent of the Subordinated Creditor;
(ii) settle or compromise any Senior Debt or any
security therefor or any liability incurred directly or indirectly in
respect thereof and apply any sums by whomsoever paid and however
realized to any of the Senior Debt in any manner or order; and
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<PAGE> 11
(iii) fail to take or to record or otherwise perfect,
for any reason or for no reason, any Lien securing Senior Debt by
whomsoever granted, exercise or delay in or refrain from exercising
any right or remedy against the Company or any other Person or any
security, elect any remedy and otherwise deal freely with any security
and with the Company or any liability of the Company to such holder or
any liability incurred directly or indirectly in respect thereof.
All rights and interests under this Intercreditor Agreement of the
holders of Senior Debt, and all agreements and obligations of the holders of
Subordinated Debt and the Company hereunder, shall remain in full force and
effect irrespective of (i) any lack of validity or enforceability of the Senior
Credit Documents, or of any provision of any thereof, or (ii) any other
circumstance that might otherwise constitute a defense available to, or be
discharge of, the Company in respect of the Senior Debt.
5. Authorization to Take Action to Effect Subordination. If
any holder of Subordinated Debt shall fail to file a proper claim or proof of
debt or other document or amendment thereof in form required in any proceeding
under the Bankruptcy Code prior to 30 days before the expiration of time to
file such claim or other document or amendment thereof, then the Senior
Creditor Representative shall have the right (but not the obligation) in such
proceeding, and the Senior Creditor Representative is hereby irrevocably
appointed lawful attorney for such holder of Subordinated Debt for the purposes
of enabling the Senior Creditor Representative to demand, sue for, collect,
receive and give receipt for payments and distributions in respect of the
Subordinated Debt that are made in such proceedings and that are required to be
paid or delivered to the holders of Senior Debt as provided in Section 2.2
hereof, and to file and prove all claims therefor and to execute and deliver
all documents in such proceedings in the name of such holder of Subordinated
Debt or otherwise in respect of such claims, as the Senior Creditor
Representative may determine to be necessary or appropriate; provided that if a
proper proof of claim with respect to the Subordinated Debt held by such holder
shall be filed, such holder shall have the right upon written notice to the
Senior Creditor Representative to terminate the right of the Senior Creditor
Representative to take any further actions with respect to such claim of such
holder and such holder shall thereafter be entitled to pursue such claim and to
pursue the rights and remedies respecting such claim (including the right to
vote in connection with one or more proposed plans of reorganization) in such
proceedings, so long as such holder shall do so diligently and in good faith.
6. Legend. The Company and each holder of any Subordinated
Note or other note evidencing Subordinated Debt now or hereafter outstanding
covenant to
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cause such note to have affixed upon it at all times a conspicuous legend which
reads substantially as follows:
"This instrument is subject to the Subordination and
lntercreditor Agreement dated as of September , 1996,
among The Chase Manhattan Bank, as Administrative Agent,
MCI Telecommunications Corporation and LCC International,
Inc., which, among other things, contains provisions
subordinating the obligations of the maker of this
instrument to the payee hereof to such maker's obligations
to the holders of the Senior Debt (as defined in said
Subordination and Intercreditor Agreement), to which
provisions the holder of this instrument, by its acceptance
hereof, agrees."
7. Amendments and Waivers to Subordinated Note Documents. No
provision of the Subordinated Note Documents shall be further amended,
supplemented, modified or waived without the prior written consent of the
Senior Creditor Representative.
8. Notices. All notices hereunder shall be in writing and
shall be conclusively deemed to have been received and shall be effective (a)
on the day on which delivered if delivered personally or transmitted by
telecopier, or (b) one Business Day after the date on which the same is
delivered to a nationally recognized overnight courier service, and shall be
addressed:
(i) if to the Company, to it at the following address
(or, in the case of a telecopy, to the following telecopy number):
LCC International, Inc.
Arlington Courthouse Plaza II
2300 Clarendon Boulevard, Suite 800
Arlington, Virginia 22201
Attention: Dr. Rajendra Singh
Telecopy No.: (703) 516-4960;
with a copy to:
LCC International, Inc.
Arlington Courthouse Plaza II
2300 Clarendon Boulevard, Suite 800
Arlington, Virginia 22201
Attention: Peter Deliso, Esq.
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Telecopy No.: (703) 516-4960
with a copy to:
Hogan & Hartson, L.L.P.
Columbia Square
555 Thirteenth Street, N.W.
Washington, DC 20004-1109
Attention: Steven M. Kaufman, Esq.
Telecopy No.: (202) 637-5910
(ii) if to the Subordinated Creditor, to it at the
following address:
MCI Telecommunications Corporation
1801 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Attention: Chief Technology Officer
Telecopy No.: (202) 887-2390
with copies to:
MCI Telecommunications Corporation
Office of the General Counsel, 10th Floor
1133 19th Street, N.W.
Washington, D.C. 20036
Attention: Edward G. Freitag, Esq.
Telecopy No.: (202) 736-6047; and
Fried, Frank, Harris, Shriver & Jacobson
1001 Pennsylvania Avenue, N.W.
Suite 800
Washington, D.C. 20004
Attention: Andrew P. Varney, Esq.
Telecopy No.: (202) 639-7003; and
(iii) if to the Senior Creditor Representative, to it
at its address for notice (or, in the case of a telecopy, to the
telecopy number) provided for in the Senior Credit Agreement;
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<PAGE> 14
or at such other address and/or telecopy number and/or to the attention of such
other Persons as any of such Persons shall have advised the others by notice in
the manner herein specified.
9. Successors; Continuing Effect; Etc. This Agreement is
being entered into for the benefit of, and shall be binding upon, the Senior
Creditor Representative and the Subordinated Creditor and their respective
successors and assigns, including, limitation, all subsequent holders of Senior
Debt and Subordinated Debt whether now outstanding or hereafter incurred. This
Agreement shall be binding upon the Company and its successors and assigns.
This Agreement shall be a continuing agreement and shall be irrevocable and
shall remain in full force and effect as long as there is both Senior Debt and
Subordinated Debt outstanding, but shall terminate upon the payment in full in
cash of all outstanding Senior Debt.
10. Specific Performance. The holders of Senior Debt are
hereby authorized to demand specific performance of this lntercreditor
Agreement, whether or not the Company or any holder of Subordinated Debt shall
have complied with any of the provisions hereof applicable to it, at any time
when the Company or such holder of Subordinated Debt shall have failed to
comply with any of the provisions of this lntercreditor Agreement applicable to
it. The Company and each holder of Subordinated Debt irrevocably waives any
defense based on the adequacy of a remedy at law, which might be asserted as a
bar to such remedy of specific performance.
11. No Disposition of Subordinated Debt. No holder of
Subordinated Debt will sell, assign, pledge, encumber or otherwise dispose of
any of the Subordinated Debt unless such sale, assignment, pledge, encumbrance
or disposition is made expressly subject to this lntercreditor Agreement.
12. Amendments, etc. This Agreement may be amended, and the
terms hereof may be waived, only with the written consent of the Company, the
holders of a majority in outstanding principal amount of the Senior Debt and
the holders of a majority in outstanding principal amount of the Subordinated
Debt.
13. Conflicting Provisions. In the event of any conflict or
inconsistency between the provisions of this lntercreditor Agreement, on the
one hand, and any term or provision of the Senior Credit Documents or the
Subordinated Note Documents, on the other hand, the provisions of this
Intercreditor Agreement govern and prevail. The provisions of this
lntercreditor Agreement shall supersede the provisions of Section 6 of each of
the Subordinated Notes with respect to the relative rights of the holders of
Subordinated Debt and the holders of "Senior Debt" as defined in Section 1 of
this Intercreditor Agreement, but are not intended to affect the relative
rights of the holders of Subordinated Debt and any other holder
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<PAGE> 15
of "Senior Debt" as such term is defined in Section 14 of each of the
Subordinated Notes.
14. Miscellaneous. This Agreement, which may be executed in
any number of counterparts, shall be governed by and construed and interpreted
in accordance with the laws of the State of New York. The headings in this
Intercreditor Agreement are for convenience of reference only and shall not
alter or otherwise affect the meaning hereof.
15. Submission to Jurisdiction, Waiver of Venue.
(a) EACH OF THE COMPANY, THE SUBORDINATED CREDITOR AND THE
SENIOR CREDITOR REPRESENTATIVE CONSENTS AND AGREES TO THE JURISDICTION OF ANY
STATE OR FEDERAL COURT SITTING IN THE COUNTY OF NEW YORK, STATE OF NEW YORK,
AND WAIVES ANY OBJECTION BASED ON VENUE OR FORUM NON CONVENIENS WITH RESPECT TO
ANY ACTION INSTITUTED THEREIN.
(b) NOTHING IN THIS SECTION 15 SHALL AFFECT THE RIGHT OF THE
SENIOR CREDITOR REPRESENTATIVE OR ANY HOLDER OF SENIOR DEBT TO BRING ANY ACTION
OR PROCEEDING AGAINST THE COMPANY OR THE SUBORDINATED CREDITOR OR THEIR
RESPECTIVE PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
16. Waiver of Right to Trial by Jury. EACH OF THE COMPANY, THE
SENIOR CREDITOR REPRESENTATIVE AND THE SUBORDINATED CREDITOR HEREBY WAIVES ANY
RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i)
ARISING UNDER THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR (ii) IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
IN RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED
HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. AND WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE. EACH OF THE COMPANY, THE SENIOR
CREDITOR REPRESENTATIVE AND THE SUBORDINATED CREDITOR HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY.
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<PAGE> 16
17. Consents. The Subordinated Creditor hereby consents to the
execution, delivery and performance by the Company of the Senior Credit
Documents and to the incurring of the Debt and granting of Liens in accordance
with the terms thereof.
18. Certain Acknowledgements. The Subordinated Creditor hereby
acknowledges that (a) the Subordinated Creditor has released the Parent and all
of its Property from all claims, liabilities and obligations arising from or
related to the Subordinated Debt and the Subordinated Note Documents
(including, without limitation, its obligation to repay the Telcom Note), (b)
no payments are due to the Subordinated Creditor by the Company pursuant to
Section 3.2 of the June 27, 1994 Securityholders Agreement and (c) each of (i)
the Subordinated Note Agreement, (ii) the Guaranty dated June 27, 1994 by the
Company in favor of the Parent and (iii) the Escrow Agreement dated as of May
30, 1995 among the Company, the Subordinated Creditor and the escrow agent
referred to therein have been terminated.
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<PAGE> 17
IN WITNESS WHEREOF, the parties hereto have executed this
Intercreditor Agreement as of the date first written above.
SENIOR CREDITOR REPRESENTATIVE:
THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT
By:
----------------------------------
Its:
SUBORDINATED CREDITOR:
MCI TELECOMMUNICATIONS
CORPORATION
By:
----------------------------------
Its:
COMPANY:
LCC INTERNATIONAL, INC.
By:
----------------------------------
Its:
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<PAGE> 1
EXHIBIT 23.1
ACCOUNTANTS' CONSENT AND
REPORT ON SCHEDULES
The Members' Committee
LCC, L.L.C.
The audits referred to in our report dated March 15, 1996, except for Note 19
which is as of May 17, 1996, included the related financial statement schedule
as of December 31, 1995 and 1994, and for each of the years in the three-year
period ended December 31, 1995, included in the registration statement. This
financial statement schedule is the responsibility of the Company's management.
Our responsibility is to express an opinion on this financial statement
schedule based on our audits. In our opinion, such financial statement
schedule, when considered in relation to the basic consolidated financial
statements taken as a whole, presents fairly in all material respects the
information set forth therein.
We consent to the use of our reports included herein and to the reference to
our firm under the headings "Selected Consolidated Financial Data" and
"Experts" in the prospectus.
/s/ KPMG PEAT MARWICK LLP
KPMG Peat Marwick LLP
Washington, DC
September 24, 1996
