CREDIT AGREEMENT
THIS CREDIT AGREEMENT is entered into as of June 17, 1998 by and
between Motorola Inc., a Delaware corporation, (hereinafter "Motorola") and
ARDIS Company, a New York general partnership (the "Borrower" or "you").
You have asked Motorola to provide financing to you (the "Credit") for
the purchase of certain equipment from Motorola. Motorola is willing to provide
the Credit on the terms and conditions set forth in this Credit Agreement and
the attached Exhibits, which are part of this Credit Agreement. The terms and
conditions ("Terms and Conditions") attached to this Credit Agreement as Exhibit
"A" include definitions for many of the terms used below.
1. Amount of Credit; Note. The aggregate maximum principal amount of
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Credit that may be drawn under this Credit Agreement shall be $10,000,000. You
may obtain Advances under this Credit Agreement until June 16, 2000, if, at the
time of requesting an Advance, you have complied with all Requirements for
Advances. Amounts repaid under this Credit Agreement may not be re-borrowed.
Motorola shall have no obligation, express or implied, to extend or to grant
additional credit after this Credit Agreement expires. The Credit shall be
evidenced by a promissory note ("Note") in substantially the form attached as
Exhibit "B" duly executed on behalf of the Borrower.
2. Drawdown Procedure. At the time you order equipment from Motorola,
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you will notify Motorola in writing on the purchase order that you intend to
finance the purchase with Motorola under this Credit Agreement, and will
identify the location (by State and county) at which each item of equipment may
be located during the term of this Agreement. By issuing that notice you will be
deemed to represent and warrant that all prior statements of your account are
correct. Upon shipment of each such item of equipment, provided that all
Requirements for Advances have been satisfied, if the Requirements for Advances
have been satisfied, Motorola shall thereupon be deemed to have made an Advance
equal to 75% of the purchase price of such item of equipment, and Motorola shall
make a notation on its books and records, and on the schedule to the Note,
showing such Advance. On each Quarterly Date during the term of this Credit
Agreement, the aggregate amount of the Advances made since the date hereof, or
if later, since the date of the most recent Quarterly Date, shall constitute a
Loan, which shall bear interest at the Applicable Rate and amortize as set forth
herein. You hereby irrevocably authorize Motorola at any time to endorse on the
Note (or record on its books and records) the date and amount of any Advances
made by Motorola to you, the outstanding balance of all Advances and Loans at
any time and each payment and prepayment of any principal plus interest accruing
thereon. Such endorsement or record shall be prima facie evidence of the
principal amount owing on the Note in any proceedings to enforce the payment
thereof; provided, that failure to record an Advance or any erroneous
recordation shall not affect Borrower's obligations to repay all sums actually
borrowed hereunder. No Advance or deemed Advance shall be permitted for any
payment of principal or interest due under the Note. You will receive from
Motorola, on or about the Thursday immediately preceding the last Monday of the
month, an itemized list of equipment provided to you during the most recent
monthly period. You will pay to Motorola, within thirty days from the invoice
date, the full amount of the purchase price for equipment and services shown on
such invoice, less the amount of any Advances made for the purchase of any such
equipment as provided above.
3. Interest Rate. You agree to pay interest to Motorola on the
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principal amount of the Credit outstanding from time to time. If the Credit is
not in Default, you will pay interest each quarter in arrears at the Applicable
Rate. If, and as long as, the Credit is in Default, the interest rate will be
increased another three percent (3%) per annum above the Applicable Rate (the
"Default Rate") and will be payable upon demand. As detailed in the Terms and
Conditions, under no circumstances will you be required to pay an interest rate
or an amount of interest greater than the maximum interest allowed by applicable
law.
4. Repayment Terms. Motorola will send you quarterly invoices
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showing principal and interest due. You agree to pay each invoice on or before
its due date. The principal portion of each Loan will be amortized over a three
year period beginning with the Quarterly Date on which such Loan commences, in
twelve consecutive equal quarterly installments. You agree to pay a late charge
equal to five percent (5%) of any principal amount payable by you for any
invoice payment not received by Motorola within ten days of the due date. Your
failure to pay an invoice within fifteen days of its due date constitutes an
Event of Default under this Credit Agreement.
5. Financial Information. Motorola has agreed to provide the Credit
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based on financial information you have prepared and supplied. Between the date
of the financial information and the date of this Credit Agreement, you confirm
that there has been no material, adverse change in your financial condition or
business operation. As described in the Terms and Conditions, you agree to give
Motorola updated financial information during the time the Credit is
outstanding.
6. Collateral. As security for the timely payment and performance of
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your Obligations, you hereby grant to Motorola a perfected, first priority
security interest and lien in the Collateral. At the time of delivery of each
purchase order as described in Section 2 above, you will deliver to Motorola an
executed Financing Statement on form UCC-1 substantially in the form of Exhibit
"E" to this Agreement for filing in each jurisdiction identified as a location
where the equipment ordered may be located during the term of the Agreement. You
hereby authorize Motorola to attach to each such Financing Statement a schedule
listing the serial numbers or other identifying information describing the
equipment shipped in accordance with the purchase order, and to file such
Financing Statements in each jurisdiction in which it deems such filing
necessary to perfect Motorola's security interest in the Collateral. You agree
to execute such other documents and take all reasonable actions requested by
Motorola, at your expense, to perfect and maintain the perfection of Motorola's
security interest in the Collateral.
The Credit will also be secured by the joint and several Guarantees of
the Guarantors listed on Exhibit "C", guaranteeing repayment of the Credit (in
accordance with Guarantee Agreements in the form attached as Exhibit "C").
7. Waiver of Jury Trial. YOU AND MOTOROLA AGREE THAT ANY CLAIM,
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COUNTERCLAIM, SETOFF, OR DEFENSE RELATING IN ANY WAY TO (A) THIS AGREEMENT
(INCLUDING ALL EXHIBITS AND ALL OTHER DOCUMENTS RELATING TO THIS AGREEMENT), OR
(B) ANY ACTION, OMISSION, COURSE OF CONDUCT, PRACTICE, OR TRANSACTION BY YOU OR
MOTOROLA (INCLUDING THE RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
ATTORNEYS, AND OTHER REPRESENTATIVES OF EACH) SHALL BE HEARD AND DETERMINED BY A
COURT WITHOUT A JURY. YOU AND MOTOROLA HAVE ENTERED INTO THIS AGREEMENT IN
RELIANCE UPON THIS PROVISION AS A MATERIAL TERM OF THE CREDIT.
8. Governing Law. Motorola's headquarters are in Schaumburg, Illinois;
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this Credit Agreement will, if accepted and executed by Motorola, become a
contract in the State of Illinois and be governed by the law of Illinois,
without regard to its conflicts of law rules. Upon the occurrence of any Event
of Default, however, Motorola shall also have the right to enforce this Credit
Agreement and related collateral documents in accordance with the laws of any
jurisdiction in which an Obligor or Collateral may then be located, or in which
the law permits Motorola to bring suit.
9. No Other Agreements; Complete Review. You and Motorola acknowledge
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and agree that this Credit Agreement and the other documents executed pursuant
to this Agreement collectively comprise the complete written agreement regarding
the Credit; there are no other understandings, inducements, representations,
negotiations, or promises of any kind other than those written here and those
made a part of this Credit Agreement. You and Motorola also acknowledge that
they have reviewed, with their own attorneys if desired, all the terms,
conditions, and provisions of this Credit Agreement and the attached Exhibits.
10. Limitation on Liability. In no event shall Motorola have any
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liability under or in connection with this Credit Agreement or any exhibit
hereto for special, incidental, indirect, or consequential damages of any sort,
including (without limitation) lost profits. If you have previously obtained
financing from Motorola or otherwise purchased equipment or services from
Motorola:
(a) you hereby release Motorola and its officers, directors,
and employees from and against any claim, counterclaim, defense, setoff, or
other liability with respect to any transaction, course of dealing, or other
matter that arose or occurred before you signed this Credit Agreement, and
(b) you acknowledge that any prior credit terms or agreements,
whether written or oral (but excluding any open account arrangements), have now
been superseded and replaced by this Credit Agreement.
11. Absolute Obligation. ANY PRESENT OR FUTURE LAW TO THE CONTRARY
NOTWITHSTANDING, YOUR OBLIGATION TO PAY MOTOROLA ALL AMOUNTS DUE HEREUNDER IS
ABSOLUTELY UNCONDITIONAL. YOU SHALL NOT BE ENTITLED TO ANY ABATEMENT, REDUCTION,
SETOFF, COUNTERCLAIM, DEFENSE, INTERRUPTION, DEFERMENT, RECOUPMENT OR DEDUCTION
WITH RESPECT TO ANY PRINCIPAL OR INTEREST PAYMENT OR ANY OTHER SUM PAYABLE
HEREUNDER, NO MATTER HOW, WHEN OR AGAINST WHOM ASSERTED, ARISING OR CLAIMED, NOR
SHALL ANY OF YOUR OBLIGATIONS HEREUNDER BE AFFECTED FOR ANY REASON WHATSOEVER.
The foregoing shall not be deemed to amend or limit your right to make a claim
against Motorola for any obligation or liability that Motorola may otherwise
have to you under the Purchase Agreement.
12. Confidentiality. Neither you nor Motorola will disclose this Credit
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Agreement or its terms to a third party except (a) insofar as the third party
has a "need to know" (as in the case of a party's accountants), in which case
the third party will be instructed to abide by this Paragraph 10, (b) in the
event disclosure is necessary to enforce the Credit Agreement or is compelled by
subpoena, requirement of law, or order of a court of competent jurisdiction, or
(c) by prior written consent of both parties.
EXECUTED by the parties as of the date first set forth above:
Notice Address: ARDIS COMPANY
ARDIS Company
10802 Parkridge Boulevard
Reston, VA 20901-5416 By:/s/Walter V. Purnell Jr.
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Attn: President and Treasurer Walter V. Purnell Jr.
Tel.: (703) 758 6000 Its: President
Fax : (703) 758-6111
With a copy to:
ARDIS Company
300 Knightsbridge Parkway
Suite 500
Lincolnshire, IL 60069
Attn: Vice President and Executive Counsel
Tel.: (847) 913-4226
Fax: (847) 913-4755
Notice Address: MOTOROLA INC.
Motorola Credit Corporation
1303 East Algonquin Road
Schaumburg, Illinois 60196
Tel: (847) 725-4502 By:/s/Michael Faill
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Fax: (847) 725-5097
Its:Sr. Manager
Worldwide Customer Finance
With a copy to:
Motorola Paging Products Group
5401 N. Beach Street
Mail Stop S22313
Fort Worth, TX 76137
Attn: Customer Finance
Tel: (817) 245-2705
Fax: (817) 245-2236
EXHIBITS
A Terms and Conditions
B Form of Promissory Note
C List of Guarantors and Form of Guarantee Agreement
D List of Subsidiaries of the Borrower
E Form of Financing Statement
F List of Assumed Names of the Borrower
EXHIBIT A
TERMS AND CONDITIONS
The following terms and conditions are referred to as the "Terms and
Conditions" in, and have been made a part of, the Credit Agreement dated as of
June 17, 1998 between MOTOROLA INC. ("Motorola") and ARDIS COMPANY (the
"Borrower" or "you").
1. Definitions
Certain terms of the Credit Agreement and these Terms and Conditions
carry particular meanings when used with initial capital letters, as follows:
"Advance" means an extension of Credit made under the Credit Agreement
upon satisfaction of the conditions set forth in the Credit Agreement, including
these Terms and Conditions.
"Advance Date" means the date on which an Advance is made or deemed to
be made under the Credit Agreement.
"Agreement" and "Credit Agreement" mean the Credit Agreement described
above, these Terms and Conditions, and the other Exhibits attached to the Credit
Agreement.
"Applicable Rate" means: (i) from the date of an Advance until the
immediately following Quarterly Date, a rate of interest equal to thirteen
percent (13%) and (ii) from the Quarterly Date which constitutes the Borrowing
Date with respect to a Loan until the date of repayment in full of such Loan, a
rate of interest equal to LIBOR plus 7.0%. The Applicable Rate will be
calculated on the basis of a 365 or 366 day year, based upon the actual number
of days elapsed.
"Applicable Term" means thirty six months from the applicable Borrowing
Date for repayment of principal.
"Borrowing Date" means each Quarterly Date on which one or more
Advances shall become a Loan under the Credit Agreement.
"Business Day" means a day other than Saturday, Sunday or any other day
on which commercial banks in Illinois are authorized or required by law to
close.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral" means all of your right, title, and interest in and to any
equipment purchased by you from Motorola with proceeds from any Advance
hereunder, wherever located, whether now owned or hereafter acquired, including
all substitutions, accessions, replacements, or renewals, and all proceeds and
products with respect to any such property (including, without limitation, any
insurance proceeds).
"Default" means the occurrence of any of the events or conditions
specified in Section 6, whether or not such event has matured into an Event of
Default through the giving of notice, the lapse of time, or both.
"Escrowed Funds" means funds held in escrow with respect to amounts due
under the UPS Agreement as set forth in the letter agreement dated December 31,
1998 between American Mobile Satellite Corporation and Motorola.
"Event of Default" is defined in Section 6.
"FCC" means the Federal Communications Commission.
"Filing Jurisdiction" means, as to any item of Collateral, any
jurisdiction in which Borrower has notified Motorola that such item of
Collateral may be located, as required under Section 2 of the Agreement, and has
delivered Financing Statements to Motorola, as required under Section 6 of the
Agreement, and (after the date which is thirty (30) days following delivery of a
notice to Motorola under Section 4.8.4 hereof), such additional jurisdictions as
are identified in such notice with respect to such item of Collateral.
"GAAP" means Generally Accepted Accounting Principles in effect in the
United States of America from time to time.
"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.
"Guarantor" means each of the joint and several guarantors of the
Borrower's obligations as identified on Exhibit "C" to the Credit Agreement.
"Indebtedness" means at a particular time, your (i) indebtedness for
financed money or for the deferred purchase price of property or services with
respect to which such Person is liable, contingently or otherwise, as obligor,
guarantor or otherwise, or in respect of which you otherwise assure a creditor
against loss, and (ii) obligations under leases which have been or should be
recorded, in accordance with GAAP, as capital leases in respect of which
obligations you are liable, contingently or otherwise, as obligor, guarantor or
otherwise, or with respect to which obligations you assure a creditor against
loss.
"Lease Obligations" means as of the date of any determination thereof,
your rental commitments under leases, excluding only obligations under leases
which are classified as Indebtedness on your balance sheet.
"LIBOR" means the three month London Interbank Offered Rate (as
published in the Wall Street Journal) on Business Day immediately preceding the
Quarterly Date which is the first date of the period during which interest on a
Loan is being calculated.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, encumbrance, lien (statutory or other), security interest,
preferential payment arrangement or other security agreement or arrangement
(including, without limitation, any conditional sale or other title retention
agreement, any financing lease having the same economic effect as any of the
foregoing, and the filing of any financing statement under the Uniform
Commercial Code or comparable law of any jurisdiction).
"Loan" means the aggregate principal amount of Advances made during a
period ending on a Quarterly Date and beginning on either the Effective Date of
this Agreement or the immediately preceding Quarterly Date.
"Obligations" means all of each Obligor's obligations (a) for the
payment of money to Motorola, and (b) for the performance of any covenant, term,
provision, or requirement of the Agreement.
"Obligors" means you and each of the Guarantors obligated either
personally or through a pledge of property, for repayment of the Credit.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Purchase Agreement" means the Master Purchase Agreement dated December
19, 1997 between Motorola Inc. and ARDIS Company.
"Requirement of Law" means as to any Person, the articles of
incorporation, by-laws or other organizational or governing documents of such
Person, and any law, or determination of any arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its properties or to which such Person or any of its property is
subject.
"Responsible Officer" means the chief executive officer or chief
financial officer of any corporation, or any other individual who is duly
authorized by the Person represented to perform the duties required by the
Agreement.
"UCC" means the Uniform Commercial Code as in effect in the
jurisdiction specified in the "governing law" provision of the Credit Agreement.
Any accounting terms not fully defined in the Agreement shall have the
meanings given to them under GAAP.
2. Principal and Interest
2.1 Statements. Motorola will invoice you quarterly for scheduled
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principal and interest payments under the Credit. You will make each payment on
its due date. If Motorola's statement of the balance or amount due does not
agree with your records, you will notify Motorola in writing of the amount shown
by your records within ten (10) Business Days of your receipt of Motorola's
statement. Absent such notification, or manifest error, Motorola's statement
shall be presumed to be correct. Nosuch notification shall suspend or affect
your duty to make timely payment.
2.2 Optional Prepayments. You may, at your option, on any Business
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Day, prepay the Credit, in whole or in part, upon at least seven (7) days'
written notice to Motorola specifying the date and amount of prepayment. Such
notice shall be irrevocable and the payment amount specified in such notice
shall be due and payable together with accrued interest to such date on the
principal amount being prepaid. The principal amount prepaid for any Advance
which has not become part of a Loan shall be $10,000 or an integral multiple
thereof or the total remaining amount outstanding. In the case of prepayment of
any Loan, the principal amount prepaid shall be the total remaining principal
amount of such Loan.
2.3 Effect of Prepayment. Any prepayment shall be applied to the
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installments of principal in inverse order of maturity. Any prepayment shall not
relieve you from the obligation of paying the current or any succeeding
installment until the Credit is repaid in full. Amounts prepaid may not be
reborrowed.
2.4 Maximum Interest Rate and Amount. Under no circumstances shall
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you or any Obligor be required to pay Motorola a rate or amount of interest
(together with all fees and charges which are treated as interest under
applicable law) that exceeds that permitted by applicable law. If any overcharge
occurs, (a) it is inadvertent, (b) you will immediately notify Motorola in
writing of such overcharge, and (c) the overcharge will be returned to you or
credited to principal, as Motorola may elect.
3. Representations and Warranties
In order to induce Motorola to enter into the Agreement and to provide
you with the Credit, you hereby represent and warrant to Motorola the following,
except as otherwise disclosed to Motorola in writing concurrently with the
execution of the Agreement:
3.1 Status. You are duly incorporated or formed, and validly existing
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under the laws of the state of incorporation or formation. You have the power
and authority and the legal right to own and operate your property, to lease the
property you operate, and to conduct the business in which you are currently
engaged and in which you propose to engage, (b) are in compliance with all
Requirements of Law except to the extent that the failure to comply therewith
could not, in the aggregate, have a material adverse effect on your business,
operations, assets (taken in the aggregate) or financial condition, and could
not materially adversely affect your ability to perform your obligations under
the Agreement, and (c) have qualified to do business in all jurisdictions where
your ownership, lease or operation of property or the conduct of your business
requires such qualification or recording, except to the extent that the failure
to so qualify could not, in the aggregate, have a material adverse effect on
your business, operations, assets (taken in the aggregate) or financial
condition, and could not materially adversely affect your ability to perform
your obligations under any of the Agreements.
3.2 Power and Authority. You have the power, authority and legal right
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to execute, deliver and perform the Agreement and to borrow hereunder, and have
taken all necessary action to authorize the Credit on the terms and conditions
of this Agreement, and to authorize the execution, delivery and performance of
the Agreement and the related documents described therein. Where any
Governmental Authority, including without limitation any PUC, requires consents,
filings or authorizations prior to the Credit, you shall have obtained all such
consents, filings or authorizations. Other than such consents, filings or
authorizations, no consent or authorization or filing with, or other act by or
with respect to any Governmental Authority, is required in connection with the
Credit hereunder or with the execution, delivery, performance, validity or
enforceability of the Agreement. The Agreement has been duly executed and
delivered and constitutes your legal, valid and binding obligation, which
obligation shall be enforceable against you in accordance with the terms of the
Agreement, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and general equitable principles.
3.3 No Violations. The execution, delivery and performance of the
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Agreement and the use of the proceeds of the Credit (i) will not violate, be in
conflict with, result in a breach of or constitute a default under, any
Requirement of Law or any of your contractual obligations, except to the extent
such violations, in the aggregate, could not have a material adverse effect on
(a) your business, operations, assets (taken in the aggregate) or financial
condition, or (b) your ability to perform your obligations under the Agreement,
and (ii) will not result in, or require, the creation or imposition of any Lien
on any of your properties or revenues pursuant to any Requirement of Law or
contractual obligation, other than pursuant to the Agreement. You are in
compliance with the Employee Retirement Income Security Act of 1974 as amended
from time to time (ERISA), and neither the execution nor the performance of the
Agreement by you will result in any violation of ERISA. Any benefit plan that is
subject to ERISA has been properly accounted for in your Financial Statements
attached to the Credit Agreement.
3.4 No Pending Actions. No litigation, investigation or proceedings of
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or before any arbitrator or Governmental Authority is pending, or, to your
knowledge is threatened, against you or, against any of your properties or
revenues (a) with respect to the Agreement or any of the transactions
contemplated thereby, or (b) which is reasonably expected to be adversely
determined, and which, if adversely determined, could, individually or in the
aggregate, have a material adverse effect on your business, operations, assets
(taken in the aggregate) or financial condition.
3.5 No Defaults. You are not in default under or with respect to
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any contractual obligation where such default could be materially adverse to
your business, operations, assets (taken in the aggregate) or financial
condition, or which could materially and adversely affect your ability to
perform your obligations under the Agreement. No Default or Event of Default has
occurred and is continuing.
3.6 Good Title. Any of your leases are in full force and effect,
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and you enjoy peaceful and undisturbed possession thereunder; you have a
recorded title in fee simple to all your owned real property, and good and
marketable title to all your other personal property.
3.7 Taxes. You have filed or caused to be filed all material tax
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returns which are required by law to be filed, and have paid all taxes shown to
be due and payable on said returns or on any assessment made by any Governmental
Authority (other than those the amount or validity of which is currently being
contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on your books); and no tax
Liens have been filed and, to your knowledge, no claims are being asserted with
respect to any such taxes, fees or other charges other than inchoate Liens for
taxes not yet due.
3.8 No Extending of Credit. Neither you nor any guarantor is
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engaged or will generally engage in the business of purchasing or selling Margin
Stock (as defined in Regulation G, T, U or X of the Board of Governors or of the
Federal Reserve System) extending credit for the purpose of purchasing Margin
Stock.
3.9 No Subsidiaries. Except as disclosed on Exhibit "D" to the
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Credit Agreement, you have no subsidiaries and do not control, directly or
indirectly, any other business entity.
3.10 Patents, Trademarks, etc. You own or have the right to use
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all of the patents, trademarks, permits, service marks, trade names, copyrights,
licenses and franchises or rights with respect to the foregoing (collectively
"patents"), necessary for the conduct of your business as presently
contemplated, without any known conflict with the rights of others.
3.11 Information, Reports, etc. All information, reports and other
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papers and data furnished to Motorola by you on or at any time after the date
hereof are or will be, at the time the same are so furnished, complete and
correct in all material respects; and all projections concerning your business
furnished by you, as supplemented, will be prepared or presented in good faith
by you and have a reasonable basis. No fact is known to you which materially and
adversely affects or in the future may (so far as you can reasonably foresee)
materially and adversely affect the business, operations, assets (taken as a
whole) or your financial condition which has not been set forth in the Financial
Statements or in such information, reports, papers and data.
3.12 Security Documents. The provisions of the Agreement are effective
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to create in favor of Motorola a legal, valid and enforceable security interest
in all your right, title and interest in the Collateral in which a security
interest may be created under Article 9 of the Uniform Commercial Code; and when
(i) financing statements have been filed in the offices in the jurisdictions
listed in Exhibit "E" to the Agreement, and (ii) except for any further filing
or taking of possession which may be required under Section 9-306 of the UCC in
order to perfect a security interest in proceeds of the Collateral and any
taking of possession which may be required under the UCC in order to perfect a
security interest in instruments, the Agreement will create and grant a fully
perfected first Lien on, and security interest in the Collateral (including
proceeds) in which a security interest may be perfected under Article 9 of the
UCC.
3.13 Governmental Regulation. You hold sufficient FCC licenses for the
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conduct of your business in each area in which you currently conduct your
business.
3.14 Assumed Names. You are not doing business under any fictitious or
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assumed names, except as disclosed in Exhibit "F" to the Agreement.
3.15 Principal Place of Business. Your chief executive office and
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principal place of business are located at the notice address shown next to your
signature block on the Credit Agreement. Your books and records with respect to
the Collateral are kept at this address.
3.16 Environmental and Safety Matters. You are in compliance in all
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material respects with all federal, state, local and other statutes, ordinances,
orders, judgments, rulings and regulations relating to the environment,
environmental regulation or control, employee health and safety, or the
generation, use, storage, disposal or transportation of toxic or hazardous
materials, substances or wastes (collectively, "Environmental Laws").
4. Affirmative Covenants
You hereby agree that, so long as the Credit remains in effect or any
amounts remain outstanding and unpaid or any other amount is owing to Motorola,
you shall do the following.
4.1 Financial Reporting.
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4.1.1. As soon available, but not later than 90 days after the
end of each fiscal year, commencing with the fiscal year ending December 31,
1998, you shall provide Motorola with a copy of the audited consolidated balance
sheets of the Borrower and the Guarantors as at the end of such year and the
related audited consolidated statements of income, stockholders' equity and cash
flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous year, and accompanied by the opinion of Arthur Andersen
LLP or another nationally recognized independent public accounting firm, which
report shall state that such consolidated financial statements present fairly,
in all material respects, the financial position, results of operations and cash
flows for the periods indicated in conformity with GAAP applied on a basis
consistent with prior year.
4.1.2 As soon as available, but not later than 45 days after
the end of each of the first three fiscal quarters of each year, commencing with
the fiscal quarter ending on June 30, 1998, a copy of the unaudited consolidated
balance sheets of the Borrower and the Guarantors as of the end of such quarter
and the related consolidated statements of income, stockholders' equity and cash
flows for the period commencing on the first day and ending on the last day of
such quarter, and certified by an appropriate Responsible Officer as fairly
presenting, in all material respects, in accordance with GAAP (except for the
absence of footnote disclosure), the financial position and the results of
operations of the Borrower and the Guarantors.
4.1.3. As soon available, but not later than 90 days after the
end of each fiscal year, commencing with the fiscal year ending December 31,
1998, you shall provide Motorola with a copy of the unaudited balance sheet of
the Borrower as at the end of such year and the related unaudited statements of
income, owners equity and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous year, and certified by an
appropriate Responsible Officer as fairly presenting, in all material respects,
in accordance with GAAP, the financial position and the results of operations of
the Borrower..
4.1.4 As soon as available, but not later than 45 days after
the end of each of the first three fiscal quarters of each year, commencing with
the fiscal quarter ending on June 30, 1998, a copy of the unaudited balance
sheet of the Borrower as of the end of such quarter and the related statements
of income, owners equity and cash flows for the period commencing on the first
day and ending on the last day of such quarter, and certified by an appropriate
Responsible Officer as fairly presenting, in all material respects, in
accordance with GAAP (except for the absence of footnote disclosure), the
financial position and the results of operations of the Borrower.
4.2 Certificates: Other Information.
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4.2.1 Concurrently with the delivery of the items referred to
in Sections 4.1.1, and 4.1.2 above, you will deliver to Motorola a certificate
of the independent certified public accountants or of a Responsible Officer
certifying such financial statements or other items, as the case may be, and
stating that no Default or Event of Default has occurred and is continuing,
except as specified in such certificate.
Within five (5) days after the same are sent or filed, you will deliver to
Motorola (a) copies of all reports sent to the stockholders of American Mobile
Satellite Corporation covering such matters as are typically covered in annual
or quarterly reports, and (b) copies of each report on Form 8-K filed with the
Securities and Exchange Commission.
4.2.3 You shall further deliver promptly to Motorola such
additional financial and other information as Motorola may reasonably request
from time to time.
4.3 Discharge Obligations. You will pay, discharge or otherwise satisfy
---------------------
in the ordinary course of business (a) all Indebtedness, and (b) all other
obligations to the extent such obligations exceed, in the aggregate, $1,000,000,
except, in any such case, to the extent that (i) the amount or validity of any
such Indebtedness or other obligation is currently being contested in good faith
by appropriate proceedings, (ii) appropriate reserves in conformity with GAAP
have been provided on your books, and (iii) such matter does not involve any
risk of loss, forfeiture, or Lien on your assets.
4.4 Continuation of Business; Compliance. You will (a) continue to
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engage in business of the same general type as now conducted by you, (b)
preserve and maintain in full force and effect your existence as a general
partnership and your good standing under the laws of your State of organization,
(c) preserve and maintain in full force and effect all rights, privileges
qualifications, permits, licenses and franchises necessary or desirable in the
normal conduct of your business, (d) use your reasonable efforts, in the
ordinary course and consistent with past practice, to preserve your business
organization and preserve the goodwill and business of the customers, suppliers
and others having business relations with you, and (e) preserve or renew all of
your registered trademarks, trade names and service marks, the non-preservation
of which could have a material adverse effect on your business, operations,
financial condition, or your ability to perform your obligations under the
Agreement.
4.5 Maintenance of Collateral. You will keep the Collateral in good
-------------------------
working order and condition, reasonable wear and tear excepted.
4.6 Insurance. You will maintain property insurance in amounts at
---------
least equal to the value of the Collateral with financially sound and reputable
insurance companies. The policies shall be in writing and shall name Motorola as
loss payee, but only to the extent of the balance outstanding from time to time
under the Agreement. You will furnish to Motorola, prior to the initial funding
under the Agreement and thereafter upon written request, full information as to
the insurance carried. In the event of loss involving any of the Collateral,
insurance proceeds will be used to repair (if you and Motorola agree in writing
that repairing the damage is feasible) the damaged Collateral. If Motorola
determines in good faith that the Collateral cannot be timely repaired, then all
such insurance proceeds shall be paid directly to Motorola, for application to
the amounts outstanding hereunder, unless Motorola agrees to accept replacement
Collateral.
4.7 Records; Access. You will keep proper books of record and account
---------------
in which full, true, and correct entries in conformity with GAAP and all
Requirements of Law shall be made to reflect truly the financial position and
the results of your operations. Upon reasonable notice, you will permit
representatives of Motorola to visit and inspect the Collateral and any of your
properties and examine and make extracts from and copies of any of your books
and records at any reasonable time during normal business hours and as may
reasonably be desired by Motorola, and to discuss your business, operations,
properties and financial and other condition.
4.8 Notices. You will, within the time periods set forth below, give
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written notice to Motorola of the occurrence of any of the following:
4.8.1 within five (5) Business Days of the occurrence thereof,
any Default or Event of Default;
4.8.2 within five (5) Business Days of the occurrence thereof,
any (i) material default or any material event of default under any contractual
obligation of yours which is material in relation to your business, operations,
assets (taken in the aggregate) or financial condition or (ii) any claim,
litigation, investigation, or proceeding which arises at any time involving you
which is reasonably anticipated to be adversely determined and which, if
adversely determined, would have a material adverse affect on your business,
operations, assets (taken in the aggregate) or financial condition;
4.8.3 within five (5) Business Days of the occurrence thereof,
any material adverse change in your business, operations, assets (taken in the
aggregate) or financial condition;
4.8.4 not less than thirty days prior to the occurrence
thereof, the movement of any portion of the Collateral, which notice shall
identify the jurisdiction (as to State and county) into which each item of
Collateral (identified by serial number) shall be moved;
4.8.5 not less than thirty days prior to the occurrence
thereof, the relocation of your principal place of business or chief executive
offices to any location; and
4.8.6 not less than thirty days prior to the occurrence
thereof, the change of your name or corporate structure, or your use of any
fictitious name or assumed name.
Each notice pursuant to Sections 4.8.1, 4.8.2, and 4.8.3 shall be accompanied by
a statement of a Responsible Officer setting forth details of the occurrence
referred to therein and stating what action you propose to take with respect
thereto. Prior to the occurrence of any event specified in to Sections 4.8.4,
4.8.5, or 4.8.6 you shall also execute and deliver to Motorola any documents
requested by Motorola to maintain the continuous perfection and priority of
Motorola's Liens and security interests.
5. Negative Covenants
You hereby agree that, so long as the Credit remains outstanding and
unpaid or any other amount is owing by you to Motorola, you will comply with the
following unless Motorola has consented in writing to your failure to so comply:
5.1 Liens. You will not create, incur, assume or suffer to exist,
-----
any Lien upon any of your property, assets, income or profits, whether now owned
or hereafter acquired except:
5.1.2 existing Liens, as have been disclosed in writing to
Motorola prior to the date hereof;
5.1.2 Liens for taxes not yet due or which are being contested
in good faith and by appropriate proceedings if (a) adequate reserves with
respect thereto are maintained on your books in accordance with GAAP (b) such
matter does not involve a risk of forfeiture;
5.1.3 carriers', warehousemen's, mechanics', materialmen's,
repairmen's, or other like Liens arising in the ordinary course of business
which are not overdue for a period of more than thirty (30) days or which (a)
are being contested in good faith and by appropriate proceedings, (b) have been
appropriately reserved against, and (c) carry no risk of forfeiture or loss of
legal rights;
5.1.4 pledges or deposits in connection with workmen's
compensation, unemployment insurance, and other social security legislation, in
the ordinary course of your business;
5.1.5 deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases (other than capital leases),
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
5.1.6 easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of your business;
5.1.7 Liens in favor of Motorola under the Agreement;
5.1.8 Liens on real or personal property given to secure the
purchase price thereof, for property acquired in the ordinary course of
business; and
5.1.9 other Liens which do not attach to the Collateral, not
exceeding $15,000,000 in the aggregate at any time.
5.2 Change of Status. You will not enter into any merger or
------------------
consolidation or amalgamation, will not liquidate, wind up or dissolve (or
suffer any liquidation or dissolution), and shall not convey, sell, lease,
assign, transfer or otherwise dispose of any of your property, business or
assets (including, without limitation, receivables and leasehold interests)
whether now owned or hereafter acquired (except the sale or other disposition of
assets for good consideration in the ordinary course of business) if any such
transaction might materially adversely affect your business, financial
condition, or your ability to perform your obligations under the Agreement.
5.3 Organization and Governing Documents. You will not amend,
---------------------------------------
supplement or otherwise modify or waive compliance with any provision of your
articles of incorporation or by-laws if you are a corporation, or partnership
agreement, if a partnership, if such amendment, supplement, modification or
waiver would have a material adverse effect on your business, operation, assets
(taken in the aggregate) or financial condition, or would otherwise materially
and adversely affect your ability to perform your obligations under the
Agreement.
5.4 FCC License. Except for the performance of agreements which
-----------
predate the Agreement, you will not transfer or attempt to transfer your FCC
licenses to operate any system to any Person other than in the ordinary course
of business.
5.5 Transactions with Affiliates. You will not use any of the
----------------------------
proceeds hereunder, or engage in the purchase of goods and services, directly or
indirectly, with any Affiliate on any basis other than arms'-length.
5.6 Subsidiaries. You will not form, create, or acquire any
------------
subsidiaries except those identified on Exhibit "D" to the Agreement.
5.7 Collateral. You will not at any time place or locate any of
----------
the Collateral, or cause or permit any of the Collateral to be located, at any
place other than a Filing Jurisdiction.
6. Events of Default; Remedies
6.1 Events of Default. Any of the following events shall be
-----------------
considered an Event of Default, upon the occurrence of which Motorola may
exercise all remedies available at law together with all other rights and
remedies provided under the terms of this Section VI:
6.1.1 You shall fail to pay any principal or interest under
the Note within five (5) days of the due date, or shall fail to pay any other
amount payable under the Agreement within ten (10) days after Motorola gives
notice to you of such failure.
6.1.2 A representation or warranty made by you in the
Agreement, or which is contained in any certificate, document or financial or
other statements furnished at any time under or in connection therewith, shall
prove to have been incorrect in any material respect on or as of the date made;
provided that if such default is capable of being cured, you shall have thirty
days after notice of such default to remedy the default.
6.1.3 You shall default in the performance of any obligation
pursuant to Section 4.8 or Section 5.7 hereof.
6.1.4 You shall default in the observance or performance of
any other covenant or obligation contained in this Agreement or any exhibit
hereto, and such default shall continue unremedied for a period of thirty days
after Motorola giving notice to you of such default.
6.1.5 You shall (a) default in any payment of the principal
of or the interest on any item of Indebtedness covered by subsection (i) of the
definition of "Indebtedness" beyond the grace period, if any, provided in the
instrument or agreement under which such Indebtedness was created; or (b)
default in the observance or performance of any other agreement or condition
relating to any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto.
6.1.6 The occurrence of any of the following:
(i) you shall commence any case, proceeding or
other action under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, (a) seeking to have an order for relief entered, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to you or your debts, or (b) seeking
appointment of a receiver, trustee, custodian or othe similar official for you
or for all or any substantial part of your assets; or you shall make a general
assignment for the benefit of your creditors;
(ii) there shall be commenced against you any case,
proceeding or other action of a nature referred to in clause (i) above which (a)
results in the entry of an order for relief or any such adjudication or
appointment and (b) remains undismissed, undischarged or unbonded for a period
of thirty days;
(iii) there shall be commenced against you any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of
your assets, which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending appeal,
within thirty days from the entry thereof;
(iv) you shall take any action in furtherance of, or
indicating your consent to, approval of, or acquiescence in, any of the acts set
forth in clause (i), (ii), or (iii) above;
(v) you shall generally not pay your debts as they
become due or shall be unable to pay such debts, or shall admit in writing your
inability to pay such debts; or
(vi) the occurrence of any of the foregoing events
with respect to any Guarantor of your obligations to Motorola.
6.1.7 One or more judgments or decrees shall be entered
against you involving in the aggregate a liability (not paid or fully covered by
insurance) of $50,000.00 or more, and all such judgments or decrees shall not
have been vacated, discharged, or stayed or bonded pending appeal within thirty
days from the entry thereof.
6.1.8 Any license materially necessary for your continuing
operation of your business or any other material authorization of any
Governmental Authority with respect to the conduct by you of your business and
operations, or with respect to the Agreement, (i) shall not be obtained as and
when required to permit you to conduct your business as then being conducted,
and which has a material adverse effect on your financial condition or and
adverse effect on your ability perform your obligations under the Agreement; or
(ii) shall cease to be in full force and effect. A license shall be deemed to
cease to be in full force and effect (a) when an order revoking or terminating
said license shall be issued and such order is no longer subject to further
administrative and judicial review, or (b) when any Government Authority having
jurisdiction over any such license shall, prior to the termination thereof,
decide not to renew such license and such decision shall not be subject to
further administrative or judicial review.
6.1.9 There shall occur a default under any Guarantee
Agreement executed in connection with the Credit Agreement.
6.1.10 You shall fail to pay any undisputed amount due to
Motorola on open account within thirty (30) days from an invoice therefor, and
such failure shall continue for ten (10) days after notice thereof by Motorola.
6.2 Remedies.
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6.2.1 Acceleration. Upon the occurrence and during the
------------
continuance of any Event of Default, in addition to all rights of a secured
creditor under Article 9 of the UCC, (a) if such event is an Event of Default
specified in clause (i) or (ii) of Section 6.1.5 above, all amounts owing by you
under this Agreement and under any other account relationship between you and
Motorola shall immediately become due and payable, and (b) if such event is any
other Event of Default, then Motorola may, by notice to you declare all amounts
owing by you under this Agreement or under any such other account relationship
to be due and payable, whereupon the same shall immediately become due and
payable.
6.2.2 Possession of Collateral. You agree, if an Event of
--------------------------
Default shall be existing and upon Motorola's request, to assemble, at your
expense, all equipment and other property constituting a part of the Collateral
at a convenient place acceptable to Motorola and to pay all costs of Motorola of
collection of all amounts due, and enforcement of all rights hereunder,
including reasonable attorney's fees and legal expenses, and expenses of any
repairs to any realty on other property to which any of such equipment may be
affixed. Upon an Event of Default Motorola may, to the fullest extent permitted
by applicable law, without notice, advertisement, hearing or process of law of
any kind, enter upon any premises where any of the equipment constituting part
of the Collateral may be located and take possession of and remove such
equipment.
6.2.3 Sale of Collateral. Without limiting the generality of
------------------
the foregoing, Motorola shall have all the rights and remedies of a secured
party under the UCC or other applicable law and Motorola may sell and deliver
any or all Collateral held by or for it at public or private sale, for cash,
upon credit, for future delivery or otherwise, at such prices and upon such
terms as Motorola deems advisable, in its sole discretion and/or collect, or
enforce the collection of, the Collateral. Motorola may buy any or all of the
Collateral at any such sale.
6.2.4 Standard of Care. Motorola shall exercise reasonable
----------------
care at all times in the custody and preservation of any of the Collateral in
its possession, and shall be deemed to have exercised such reasonable care if it
takes such action for the purpose you reasonably request in writing.
6.2.5 Advances to Protect Collateral. Motorola may (but
--------------------------------
shall not be obligated to) make advances to preserve, protect or obtain any of
the Collateral, including advances to pay taxes, insurance and the like, and all
such advances shall become a part of the Obligations owing to Motorola hereunder
and shall be repayable to Motorola with interest thereon from the date of such
advance until paid at the Default Rate set forth in this Agreement.
6.2.6 Notices, etc. Waived. Except as expressly provided in
--------------------
this Section VI, you expressly waive, to the fullest extent permitted by
applicable law, presentment, demand, protest, any and all notices of any kind,
advertisement, hearing or process of law in connection with the exercise by
Motorola of any of its rights and remedies upon the occurrence of an Event of
Default. If any notification of intended disposition of any of the Collateral is
required by law, such notification, if mailed, shall be deemed reasonably and
properly given if mailed at least five days before such disposition, postage
prepaid, addressed to Company either at the address shown below, or at your
address appearing on the records of Motorola.
6.2.7 Setoff. If any amount owing by you to Motorola shall
------
have become due and payable (by acceleration or otherwise), Motorola shall have
the right, in addition to all other rights and remedies available to it, without
notice to you, to setoff against such amounts any debt owing from Motorola to
you and any other funds held by Motorola in any manner for your account, it
being understood that the Escrowed Funds will in no event be available for
setoff under this provision. Such right shall exist whether or not Motorola
shall have given notice or made any demand hereunder, whether or not such debt
owing to you is matured or unmatured, and regardless of the existence or
adequacy of any collateral, guaranty or any other security, right or remedy
available to Motorola. You hereby consent to and confirm the foregoing
arrangements and confirm Motorola's rights of setoff.
6.2.8 Application of Proceeds. Any proceeds of any of the
-----------------------
Collateral shall be applied by Motorola toward the repayment of the Credit and
any of your other obligations to Motorola in the following priority: first,
towards expenses incurred in connection with the exercise of rights or remedies
with respect to any of the Collateral (including reasonable fees and legal
expenses); second, to accrued interest; and third, to the installments of
principal in inverse order of maturity thereof
6.2.9 No Further Advances. During the continuance of an Event
-------------------
of Default, Motorola shall have no obligation to make Advances to you.
6.3 General Authority. Subject to any requirements for governmental
------------------
approval, upon the occurrence and during the continuance of any Event of
Default, the rights, powers and privileges provided in this Section and all
other remedies available to Motorola under this Agreement or by statute or by
rule of law may be exercised by Motorola at any time from time to time whether
or not the Credit shall be due and payable, and whether or not Motorola shall
have instituted any foreclosure or other action for enforcement. For the purpose
of carrying out the provisions and exercising the rights, powers and privileges
granted by this Section 6, you hereby irrevocably constitute and appoint
Motorola your true and lawful attorney-in-fact to execute, acknowledge and
deliver any instruments and do and perform any acts such as are referred to in
this Section 6 in your name on your behalf in accordance with this Agreement and
any statute or rule of law. This power of attorney is a power coupled with an
interest and cannot be revoked.
6.4 Expenses. In addition to all other sums due to Motorola, you will
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pay Motorola, on demand, all reasonable costs and expenses (including reasonable
attorneys' fees and disbursements and court costs) incurred by Motorola at any
time in connection with (i) the enforcement or collection of any of the
Obligations, (ii) attempts to obtain possession of, liquidate, or collect on any
of the Collateral, (iii) the enforcement, protection or preservation of any of
Motorola's rights or remedies under this Agreement, or (iv) the completion,
construction, installation, operation, management or maintenance of any of your
systems by Motorola, its designee, or a receiver or trustee, whether pursuant to
this Section 6 or otherwise, or (v) the prosecution of any action or proceeding
brought against you or any of the Guarantors concerning any matter arising out
of or connected with this Agreement or any Collateral, including without
limitation any actions arising in, arising under or related to a case under the
Bankruptcy Reform Act of 1978, as amended, or any successor statute or similar
state law. All such amounts shall be payable on demand and shall accrue interest
at the Default Rate from the time of demand until paid in full. All such amounts
shall be part of the obligations due under the Agreement and payment thereof
shall be secured by all the Collateral.
7. Security Provisions
Your Obligations in connection with the Credit and this Agreement are secured by
the Collateral. These Obligations include, but are not limited to, principal,
interest, premium, charges, attorneys' fees, assessments, costs and future
Advances, whether direct or indirect, contingent or absolute, matured or
unmatured. You hereby grant to Motorola a continuing security interest in and
lien on the Collateral.
7.1 Priority of Security Interest. The security interest
-----------------------------
and lien granted by Borrower to Motorola pursuant to the Agreement is and shall
be a perfected, first priority continuing and indefeasible security interest in
the Collateral subject only to any Liens authorized by Motorola in writing.
8. Requirements for Advances
In order to draw down an Advance under the Credit Agreement, you must
have satisfied each of the following conditions precedent:
8.1 No Default or Event of Default shall have occurred and be
continuing.
8.2 You will have supplied Motorola with such articles of
incorporation, partnership agreements, by-laws, certificates of good standing or
qualification to do business, opinions of counsel, environmental certificates,
FCC licenses or compliance information, resolution, incumbency certificates,
insurance documents, and other "due diligence" information as Motorola may
reasonably request.
8.3 All financing statements, deliveries (including without limitation
share certificates), and other actions reasonably necessary to assure the
enforceability of this Agreement and the perfection of Motorola's security
interests in the Collateral and in the Equity Interests shall have been taken.
8.4 All proceedings, documents, and other legal matters pertaining to
this Agreement and the transactions contemplated herein shall be reasonably
satisfactory in form and substance to Motorola and to Motorola's counsel.
8.5 The requested Advance, when added to the existing principal
balance outstanding, must not exceed the maximum amount of Credit set forth in
the Credit Agreement. Amounts repaid may not be re-borrowed.
9. Other Terms
9.1 Amendments. No amendment, supplement or modification of this
----------
Agreement shall be binding on any party hereto unless made in writing and signed
by a duly authorized representative of such party.
9.2 Notices. All notices, requests and demands to or upon the
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respective parties hereto to be effective shall be in writing and, unless
otherwise expressly provided herein, shall be deemed to have been duly given or
made (i) when delivered by hand or (ii) the following Business Day when sent by
overnight delivery service, by courier, or (iii) the same day when transmitted
by facsimile and a confirmation of transmission printed by sender's facsimile
machine. A copy of any notice given by facsimile also shall be mailed, postage
prepaid, to the addressee. Notices to the respective parties hereto shall be
addressed to the parties at their addresses shown on the Credit Agreement.
9.3 Waiver.
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9.3.1 Waiver by Consent. Motorola may execute and deliver to
-----------------
you from time to time, a written instrument waiving, on such terms and
conditions as Motorola may specify in such instrument, any of the requirements
of the Agreement or any Default or Event of Default and its consequences. In the
case of any waiver, you and Motorola shall be restored to their former positions
and rights hereunder and any Default or Event of Default waived shall be deemed
to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impairment thereof.
9.3.2 No Implied Waiver: Rights are Cumulative. The failure to
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exercise or the delay in exercising, on the part of Motorola, any right, remedy,
power or privilege under the Agreement, shall not operate as a waiver thereof;
the single or partial exercise of any right, remedy, power or privilege under
the Agreement shall not preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
9.4 Survival. All agreements, covenants, representations, warranties
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and indemnities made under the Agreement and in any document, certificate or
statement delivered pursuant thereto or in connection herewith shall survive the
execution and delivery of this Agreement and the Note and the making of Advances
regardless of any investigation made by Motorola.
9.5 Indemnity. You hereby indemnify Motorola against any losses,
---------
claims, penalties, expenses, actions, suits, obligations, liabilities,
documentary stamp or transfer taxes (if applicable) and liens (and all costs and
expenses, including reasonable attorney's fees incurred in connection
therewith), which Motorola has sustained or incurred or may sustain or incur in
connection with any of the Collateral, or the enforcement of the Agreement, or
as a consequence of any default by you in the performance or observance of any
covenant or condition contained in this Agreement, including without limitation,
the breach of any representation or warranty, any failure by you to pay when due
(by acceleration or otherwise) any principal, interest, fee or any other amount
due hereunder, and any failure to comply with all applicable Requirements of Law
(collectively, "Claims"), except for any Claims determined by a court in a final
order to have been caused by Motorola's gross negligence or intentional
misconduct. Your obligations under this Section 9.5 shall be part of the
obligations secured hereby and shall be secured by the Collateral. You agree
that upon written notice by Motorola of the assertion of any Claims, you will,
at Motorola's option, either assume full responsibility for, or reimburse
Motorola for the reasonable costs and expenses of, the defense thereof, except
for any Claims caused by Motorola's gross negligence or intentional misconduct.
The provisions of this Section 9.5 shall survive the term of this Agreement.
9.6 Assignment. This Agreement shall be binding upon and inure to
----------
the benefit of you, Motorola, and their respective permitted successors and
assigns. This Agreement is not assumable by any successor or transferee of
yours; you may not assign or transfer any of your rights under this Agreement,
or delegate any of your duties under this Agreement, without prior written
consent of Motorola. Motorola may assign this Agreement, without notice to you
or your consent; provided that so long as no Event of Default exists, Motorola
shall not assign this Agreement to any entity that competes with you.
9.7 Counterpart Documents. This Agreement may be executed by one
- --------------------- or more of the parties to this Agreement in any number of
separate counterparts and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
9.8 FCC/PUC Approvals. The exercise of any rights hereunder by
-----------------
Motorola which may require FCC/PUC approval shall be subject to obtaining such
approval. Pending obtaining any such FCC/PUC approval, you will not do anything
with respect to such rights which is contrary to the interests of Motorola.
9.9 Severability. If any provision of this Agreement is found to
------------
be unenforceable for any reason whatsoever, such provision shall be deemed null
and void to the extent of such unenforceability but shall be deemed separable
from and shall not invalidate any other provision of this Agreement.
9.10 Captions. Captions to the various paragraphs of this Agreement
--------
are provided for convenience only and shall not be used to construe the
provisions of this Agreement.
9.11 Review of Information. You acknowledge and agree that any
---------------------
review or analysis by Motorola of financial information, operating information,
marketing data or other information provided to Motorola by you or on your
behalf at any time is and shall be conducted solely for Motorola's benefit and
internal use and that Motorola is under no duty or obligation to make the
results of such review or analysis available to you. You are not relying, and
will not rely, on Motorola for financial or business advice.
9.12 No Joint Venture; No Benefit to Non-Parties. Nothing in this
-------------------------------------------
Agreement shall be deemed to constitute any kind of partnership, joint venture
or fiduciary relationship between or among Motorola and any Obligor(s); further,
the Agreement is not intended to benefit any Person that is not a party to the
Agreement.
EXHIBIT B
Amount: $10,000,000 Date: June 17, 1998
PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned (the "Borrower" or "you") hereby
promises to pay to the order of Motorola Inc. ("Motorola") a Delaware
corporation, at its principal offices at 1303 East Algonquin Road, Schaumburg,
Illinois 60196, the lesser of (i) the principal sum of Ten Million Dollars
($10,000,000), or (ii) the aggregate unpaid principal amount of Advances made by
Motorola to the Borrower under the Credit Agreement (the "Credit Agreement")
dated as of June 17, 1998 between the Borrower and Motorola, together with
interest on the entire principal balance from time to time outstanding
hereunder.
Interest shall accrue as of the date of this Note and shall be
calculated on the amount of each Advance outstanding from time to time at a rate
per annum equivalent to the Applicable Interest Rate (as defined in the Credit
Agreement). Interest shall be payable quarterly in arrears. The first interest
payment shall be due on the first day of the calendar quarter first following
the date hereof on which any amounts are outstanding hereunder, and on the date
of prepayment in full of any balance due hereunder. Interest shall be calculated
on a 365/366 day year basis for actual days elapsed. Upon the occurrence of an
Event of Default, the interest rate shall be increased by a further three
percent (3%) per annum above the rate otherwise applicable or (if lesser) the
maximum rate permitted by law. In no event shall the holder of this Note be
entitled to claim any sum or rate of interest in excess of the maximum allowed
by law. Any payment in excess of such maximum sum or amount of interest shall,
at the option of Motorola, be applied to reduce outstanding principal or shall
be refunded to Borrower.
Motorola shall record on its books or records all payments and
prepayments of principal and interest, the principal balance from time to time
outstanding and the respective dates and maturity dates thereof. The record
thereof, whether shown on such books or records, shall be prima facie evidence
as to all amounts owing under this Note; provided, however, that the failure of
Motorola to record any of the foregoing or any error in such notation shall not
limit or otherwise affect the obligation the Borrower to repay the entire Credit
under the Credit Agreement together with accrued interest thereon.
Principal shall be payable in accordance with the terms of Credit
Agreement.
This Note is the Promissory Note referred to in, and issued under, the
Credit Agreement, and Motorola is entitled to all of the benefits provided for
therein; reference is hereby made to the Credit Agreement for a statement of all
such benefits. Capitalized terms not defined in this
Note shall have the meanings assigned to such terms in the Credit Agreement and
the exhibits attached thereto. Without limiting that reference, Motorola shall
be entitled to recover its attorney's fees and costs in connection with any
actions or proceedings taken to collect this Note after any Event of Default as
detailed in the Credit Agreement.
This Note shall be subject to, governed and construed according to the
laws of the State of Illinois, without regard to its provisions on the conflict
of laws. Whether or not executed in another jurisdiction, this Note shall become
effective upon delivery to Motorola at its headquarters in Illinois.
The maker hereby waives notice, protest, presentment, and notice of
dishonor to the full extent permitted by law. This Note evidences an
indebtedness incurred in connection with a commercial transaction rather than a
consumer or household debt.
YOU AND MOTOROLA AGREE THAT ANY CLAIM, COUNTERCLAIM, SETOFF, OR DEFENSE
RELATING IN ANY WAY TO THIS NOTE, OR TO THE MATTERS AND TRANSACTIONS GIVING RISE
TO THE ADVANCES AND INDEBTEDNESS EVIDENCED BY THIS NOTE, SHALL BE HEARD AND
DETERMINED BY A COURT WITHOUT A JURY.
ARDIS COMPANY
By:
---------------------------------------
Walter V. Purnell
Title:
------------------------------------
EXHIBIT C
LIST OF GUARANTORS AND FORM OF GUARANTEE AGREEMENT
Guarantors
American Mobile Satellite Corporation
AMSC Acquisition Company
AMSC Subsidiary Corporation
FORM OF
GUARANTEE AGREEMENT
This Agreement ("Guarantee Agreement") is effective as of June 17, 1998
and is given by ____________("Guarantor" or "you") to Motorola Inc., a Delaware
corporation ("Motorola").
Recitals
A. Guarantor is a __________ of ARDIS Company, a New York general
partnership (hereinafter referred to as the "Borrower");
B. Pursuant to a Credit Agreement of even date between Motorola
and the Borrower (the "Credit Agreement"), Motorola has agreed to provide
financing to enable the Borrower to purchase equipment and services from
Motorola;
C. The Borrower has executed, in favor of Motorola, a
promissory note (the "Note") in an aggregate principal amount of
U.S.$10,000,000, plus accrued interest;
D. Guarantor will receive direct and indirect benefits from the
financing provided by Motorola to Borrower; and
E Motorola's willingness to provide the financing contemplated
by the Credit Agreement is conditioned upon and subject to your guarantee of the
Borrower's obligations thereunder and under the Note.
Agreement
In order to induce Motorola to extend credit to the Borrower, Guarantor
does hereby covenant and agree as follows:
1. (a) Guarantor hereby absolutely, unconditionally and irrevocably,
jointly with any other guarantors, and severally, as a primary obligor and not
merely as a surety, guarantees the full and prompt payment of all obligations of
the Borrower under the Note and the Credit Agreement, including the entire
outstanding principal balance of the Note, together with accrued interest, and
with late charges and any other charges, attorneys' fees, costs and expenses
provided for under the Credit Agreement (the "Guaranteed Obligations"). Without
limiting the generality of the foregoing, Guarantor's obligations shall also
extend to all amounts which would be owed by the Borrower under the Credit
Agreement and the Note, or which would become payable under such documents, in
each case but for the fact that they are unenforceable, or not allowable due to
the existence of a bankruptcy, reorganization, or similar proceeding involving
the Borrower.
(b) Guarantor's obligations hereunder shall not be subject to
any reduction, limitation, impairment or termination for any reason, including
but not limited to, any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of any of the following: (i) the
invalidity or unenforceability of the Note or the Credit Agreement or any part
thereof; (ii) any extension, modification or renewal of, or indulgence with
respect to, or substitutions for, the sum evidenced by the Note or the Credit
Agreement or any part thereof or any agreement relating thereto at any time;
(iii) any failure or omission to enforce any right, power or remedy against the
Borrower or any guarantor with respect to the Credit Agreement, the Note or any
part thereof; (iv) any waiver of any right, power or remedy or of any default
with respect to the Credit Agreement, the Note or any part thereof or any other
agreement relating thereto; or (v) any compromise, settlement, waiver or other
modification, or any release or surrender, whether or not knowingly given with
the consent of Motorola, with or without consideration, of the Credit Agreement,
the Note, any other guarantees with respect to the Credit Agreement, the Note or
any part thereof or any other obligation of any person or entity with respect to
the Credit Agreement, the Note or any part thereof. Guarantor will not exercise
any rights that it may have by way of subrogation under this Guarantee
Agreement, or otherwise, until all amounts owed to Motorola under the Credit
Agreement have been indefeasibly paid in full. Guarantor acknowledges that time
is of the essence of this Guarantee Agreement.
(c) This Guarantee Agreement shall be a continuing guarantee
and shall remain valid and in full force and effect as to all indebtedness of
the Borrower now or hereafter arising pursuant to and under the terms of the
Credit Agreement and the Note.
2. As long as any of the Guaranteed Obligations remain unpaid,
Guarantor agrees that this Guarantee Agreement shall be an absolute, present,
continuing, unlimited, unconditional and irrevocable guaranty of payment (and
not of collection). Suit may be brought and maintained against Guarantor by
Motorola to enforce any liability, obligation or duty guaranteed hereunder
without joinder of any other person or entity (including, but not limited to,
the Borrower). The liability of Guarantor under this Guarantee Agreement shall
not be deemed to be waived, released, discharged, impaired or affected by any
foreclosure, indulgence, or variation of terms of the Credit Agreement or the
Note or any part thereof, whether or not it might vary the risk of guaranty
under this Guarantee Agreement, including, without limitation, (i) any
alteration, amendment, acceleration, extension, modification, waiver or change
concerning the amount of time or manner of payment or performance of any of the
Guaranteed Obligations; (ii) any discharge or release of any of the obligations
securing the payment or performance thereof, whether or not in accordance with
the respective provisions thereof; (iii) bankruptcy, insolvency, reorganization,
liquidation or similar proceedings concerning the Borrower, Guarantor, or any
other guarantor of all or any part of the Borrower's debts to Motorola; (iv) the
addition or omission or delay in the enforcement of any right or remedy with
respect to any of the Guaranteed Obligations or with respect to this Guarantee
Agreement; or (v) the receipt, exchange, surrender or acquiescence in, any
default with respect to any of the Guaranteed Obligations.
3. Guarantor represents and warrants to Motorola as follows:
(a) Guarantor is a [relationship] of the Borrower;
(b) The execution, delivery and performance by Guarantor of
this Guarantee Agreement will not violate any agreements governing the
Guarantor, any provision of law or any order of any court or governmental agency
binding upon Guarantor or any of its property, or the terms of any instrument,
document or agreement to which Guarantor is a party, either individually or
jointly, with any other person, firm, entity or corporation or by which
Guarantor or any of the property of Guarantor is bound, or be in conflict with,
result in a breach of, or constitute (with giving of notice, the lapse of time
or both) a default under any such instrument, document or agreement, or result
in the creation or imposition of any lien upon any of the property or assets of
Guarantor;
(c) This Guarantee Agreement constitutes the valid and legally
binding obligation of Guarantor, enforceable in accordance with its terms,
except as enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and general equitable principles; and
(d) Guarantor has made an independent determination with
respect to the Borrower's capacity to repay the Note and the Borrower's future
business prospects; Guarantor has not relied on any financial information,
representation, or other communication from Motorola regarding such matters.
(e) Guarantor represents that except as disclosed on Schedule
A to this Guarantee Agreement, Guarantor has no outstanding guarantee
obligation, or any other direct or indirect contingent obligation in respect of
indebtedness of the Borrower or any other Person which is secured by a lien on
or pledge of any assets or rights of Guarantor (any such obligation excluding
those disclosed on Schedule A a "Secured Guarantee"); Guarantor covenants that
if at any time while any Guaranteed Obligations remain outstanding or
unsatisfied, Guarantor shall enter into any Secured Guarantee for the benefit of
any creditor, Guarantor shall cause its obligations under this Guarantee
Agreement to be secured on a pari passu basis with its obligations under such
Secured Guarantee.
4. (a) Guarantor will pay, discharge or otherwise satisfy in the
ordinary course of business (a) all Indebtedness, (b) all other obligations to
the extent such obligations exceed, in the aggregate, $1,000,000 and (c) all
obligations and amounts owing to the operator of the PSTN, except, in any such
case, to the extent that (i) the amount or validity of any such Indebtedness or
other obligation is currently being contested in good faith by appropriate
proceedings, (ii) appropriate reserves in conformity with GAAP have been
provided on your books, and (iii) such matter does not involve any risk of loss,
forfeiture, or Lien on your assets.
(b) Guarantor will (a) continue to engage in business of the same
general type as now conducted by it, (b) preserve and maintain in full force and
effect its corporate existence and good standing under the laws of its State of
incorporation, (c) preserve and maintain in full force and effect all rights,
privileges qualifications, permits, licenses and franchises necessary or
desirable in the normal conduct of its business, (d) use its reasonable efforts,
in the ordinary course and consistent with past practice, to its your business
organization and preserve the goodwill and business of the customers, suppliers
and others having business relations with it , and (e) preserve or renew all of
its registered trademarks, trade names and service marks, the non-preservation
of which could have a material adverse effect on its business, operations,
financial condition, or its ability to its your obligations hereunder.
(c) Guarantor will keep proper books of record and account in which
full, true, and correct entries in conformity with GAAP and all Requirements of
Law shall be made to reflect truly the financial position and the results its
operations. Upon reasonable notice, Guarantor will permit representatives of
Motorola to visit and inspect any of its properties and examine and make
extracts from and copies of any of its books and records at any reasonable time
during normal business hours and as often as may reasonably be desired by
Motorola, and to discuss Guarantor's business, operations, properties and
financial and other condition.
(d) So long as the Credit remains outstanding and unpaid or any other
amount is owing by Borrower to Motorola, Guarantor will comply with the
following unless Motorola has consented in writing to your failure to so comply:
(i). Guarantor will not enter into any merger or consolidation
or amalgamation, will not liquidate, wind up or dissolve (or suffer any
liquidation or dissolution), and shall not convey, sell, lease, assign, transfer
or otherwise dispose of any of its property, business or assets (including,
without limitation, receivables and leasehold interests) whether now owned or
hereafter acquired (except the sale or other disposition of assets for good
consideration in the ordinary course of business) if any such transaction might
materially adversely the Guarantor's business, financial condition, or its
ability to perform its obligations hereunder.
(ii) Guarantor will not amend, supplement or otherwise modify
or waive compliance with any provision of its articles of incorporation or
by-laws if such amendment, supplement, modification or waiver would have a
material adverse effect on its business, operation, assets (taken in the
aggregate) or financial condition, or would otherwise materially and adversely
affect its ability to perform its obligations hereunder.
(iii) Guarantor will not transfer or attempt to transfer its
FCC licenses to operate any paging system to any Person other than in the
ordinary course of business.
(iv) Guarantor will not engage in the purchase of goods and
services, directly or indirectly, on any basis other than arms'-length.
(v) Guarantor will not form, create, or acquire any
subsidiaries except those identified on Schedule 2 hereto.
5. This Guarantee Agreement is, and shall be deemed to be, a
contract entered into, under and pursuant to the substantive laws of the State
of Illinois, without regard to the conflict of laws rules thereof.
6. Guarantor agrees that if Motorola shall employ legal counsel
in order to successfully present, enforce or defend any or all of Motorola's
rights or remedies hereunder, then in any such event, Guarantor shall pay all
reasonable attorneys' fees and reasonable costs and expenses incurred by
Motorola in connection therewith.
7. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been given (a) when
hand delivered (or if delivery is refused, at the time of refusal) to the
address set forth below, (b) when received or refused as evidenced by the
delivery receipt if sent by Certified Mail, Return Receipt Requested, with
proper postage prepaid, addressed as set forth below, (c) when received or
refused as evidenced by the delivery receipt if sent by reputable international
courier, with delivery charges prepaid, addressed as set forth below, or (d)
when received as evidenced by the transmission report of the telecopy machine of
the transmitting party acknowledging a good transmission if sent by telecopy to
the number set forth below:
If to MOTOROLA INC. at: With a copy to:
Motorola Paging Products Group
1303 East Algonquin Road 5401 North Beach Street
Schaumburg, Illinois 60196 Fort Worth, Texas 76137
Attn: __________
Telephone: (817) ________
Telecopy: (817) 245-2236
If to the Guarantor, at: With a copy to:
- ----------------------------- -------------------------------
- ----------------------------- -------------------------------
- ----------------------------- -------------------------------
Telephone: ___________________ Telephone: ___________________
Telecopy: ___________________ Telecopy: ___________________
8. No modification or waiver of any provision of this Guarantee
Agreement shall be effective unless the same shall be in a writing signed by an
officer of Motorola and each other party whose rights or obligations are
affected thereby. No failure or any delay on the part of Motorola in exercising
any right, power or privilege hereunder shall operate as a waiver thereof; nor
shall a single or partial exercise of any right, power or privilege constitute
an election of remedy or otherwise preclude any other or future exercise thereof
or the exercise of any other right, power or privilege granted by this Guarantee
Agreement or by law. The rights, powers and privileges provided for herein are
cumulative of each other and of those provided for by law and none of them are
exclusive of any of the others or those provided for by law.
9. Subject to the restrictions on assignment contained herein, this
Guarantee Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. Motorola
shall have full right to assign its rights and delegate its obligations
hereunder or any interest herein in full, or in part, in connection with any
assignment (including but not limited to the sale of participations) of its
rights under the Credit Agreement. Guarantor shall have no right to assign any
of its rights or delegate any of its obligations hereunder to any other person
or entity without the prior written consent of an officer of Motorola.
10. Motorola shall endeavor to give Guarantor notice of default or non-
performance by the Borrower in connection with any breach of the Note or the
Credit Agreement, but no delay or failure by Motorola to give any such notice
shall in any way detract from, limit or release the Guarantor from any of
Guarantor's obligations under this Guarantee Agreement. The Guarantor hereby
waives presentment, protest, notice of protest and notice of either dishonor,
default or nonperformance in connection with any of Guarantor's obligations
under this Guarantee Agreement to the fullest extent it may lawfully do so, and
any and all demands and other notice of every kind that may be required to be
given by law.
11. Upon any determination that any provision hereof is invalid,
illegal or unenforceable in any respect, this Guarantee Agreement shall be
deemed to be modified accordingly so as to be valid and enforceable to the
maximum extent allowed by law and the remaining terms and provisions of this
Guarantee Agreement shall not be affected thereby and shall continue in full
force and effect.
12. This Guarantee Agreement shall be effective upon the date of
execution hereof and the obligations of the Guarantor shall continue, subject to
the next sentence, until the receipt by Motorola of payment in full of all
amounts due Motorola under the Credit Agreement. The obligations of Guarantor
under this Guarantee Agreement shall continue to be effective or shall be
reinstated, as applicable, if at any time any payment received by Motorola with
respect to any of the Guaranteed Obligations, or this Guarantee Agreement, is
rescinded or must be returned to the Borrower upon the insolvency, bankruptcy or
reorganization of the Borrower, and in each such case the rights of Motorola and
Guarantor's obligations under this Guarantee Agreement shall be treated as
though such payments were never made.
13.Guarantor hereby acknowledges that this Guarantee Agreement is given
in order to enhance the ability of the Borrower to perform its obligations to
Motorola under the Credit Agreement.
14.Nothing in this Guarantee Agreement or any of the other agreements
related to the financing of the Borrower's paging system shall be deemed to
constitute any kind of partnership, joint venture or other common enterprise
between Guarantor and Motorola or any kind of fiduciary relationship between
Motorola and Guarantor.
15.Motorola shall have no liability to Guarantor under or in connection
with the financing of the Borrower's paging system for any special, incidental,
indirect, consequential or punitive damages of any kind or nature, even if such
damages may be reasonably foreseeable.
16.Guarantor hereby subordinates, to all rights of Motorola as against
the Borrower, all rights to payment, claims, and other interests of Guarantor in
or against Borrower.
17. ANY SUIT, ACTION OR PROCEEDING AGAINST ANY PARTY WITH RESPECT TO
THIS AGREEMENT, OR ANY OTHER OBLIGATION OR ANY JUDGMENT ENTERED BY ANY COURT IN
RESPECT OF ANY THEREOF MAY BE BROUGHT IN THE APPROPRIATE COURT OF THE STATE OF
ILLINOIS, U.S.A., OR IN THE APPROPRIATE U.S. DISTRICT COURT IN THE STATE OF
ILLINOIS, U.S.A., AND EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS GENERALLY AND
UNCONDITIONALLY TO THE NONEXCLUSIVE JURISDICTION OF EACH SUCH COURT FOR THE
PURPOSE OF ANY SUCH SUIT, ACTION OR PROCEEDING. EACH PARTY HERETO AGREES THAT
SERVICE OF ALL WRITS, PROCESS AND SUMMONSES IN ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN THE STATE OF ILLINOIS, U.S.A., MAY BE MADE UPON EACH PARTY
AT ITS RESPECTIVE ADDRESS ABOVE. EACH PARTY HERETO HEREBY IRREVOCABLY CONSENTS
TO THE SERVICE OF PROCESS IN ANY ACTION OR PROCEEDING IN SAID COURTS BY THE
MAILING THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT SUCH
ADDRESS. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND HEREBY FURTHER IRREVOCABLY WAIVES ANY
CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.
18. GUARANTOR AND MOTOROLA EACH HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MIGHT HAVE TO A JURY TRIAL WITH RESPECT TO
ANY LITIGATION OR ACTION BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS GUARANTEE AGREEMENT OR THE NOTE, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF ANY PARTY TO THIS
GUARANTEE AGREEMENT OR THE NOTE.
[GUARANTOR]
By:____________________________________
Its:___________________________________
SCHEDULE 1 TO GUARANTEE
OF
[GUARANTOR]
Secured Guarantees as of June 17, 1998
SCHEDULE 2 TO GUARANTEE
OF
[GUARANTOR]
Subsidiaries
EXHIBIT D
LIST OF SUBSIDIARIES OF THE BORROWER
None.
EXHIBIT E
FORM OF FINANCING STATEMENT
EXHIBIT F
LIST OF ASSUMED NAMES OF THE BORROWER
None