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EXHIBIT 10(s)(iii)
AGENCY AGREEMENT
between
LCI INTERNATIONAL, INC.,
as the Construction Agent
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity, but solely as the
Owner Trustee under the Stuart Park Trust,
as the Lessor
Dated as of November 15, 1996
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
APPOINTMENT OF THE CONSTRUCTION AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.2 Acceptance and Undertaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.3 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.4 Scope of Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.5 Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.6 Covenants of the Construction Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE III
THE PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.1 Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.2 Amendments; Modifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.3 Failure to Complete the Property; Payment of Maximum Residual Guarantee Amount . . . . . . . . . . . . . . . . 5
3.4 Failure to Complete the Property and Purchase Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.5 Change in Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE IV
PAYMENT OF FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.1 Right to Receive Construction Cost . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE V
EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.2 Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.3 Remedies; Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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ARTICLE VI
THE LESSOR'S RIGHTS; THE CONSTRUCTION AGENT'S RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.1 Exercise of the Lessor's Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.2 The Lessor's Right to Cure the Construction Agent's Defaults . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE VII
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.2 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.3 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.4 Submission To Jurisdiction; Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.5 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.6 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.7 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.8 Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.9 WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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EXHIBIT 10(s)(iii)
AGENCY AGREEMENT
THIS AGENCY AGREEMENT, dated as of November 15, 1996 (as amended,
modified, extended, supplemented, restated and/or replaced from time to time,
the "Agreement"), between FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national
banking association ("FSB"), not in its individual capacity, but solely as
Owner Trustee under the Stuart Park Trust (the "Lessor") and LCI INTERNATIONAL,
INC., a Delaware corporation (the "Construction Agent").
PRELIMINARY STATEMENT
A. The Lessor and the Construction Agent are parties to that
certain Lease Agreement, dated as of even date herewith (as amended, modified,
extended, supplemented, restated and/or replaced from time to time, the
"Lease"), pursuant to which the Construction Agent, as lessee (in such
capacity, the "Lessee") has agreed to lease certain Land, Improvements and
Equipment from the Lessor (collectively, the "Property").
B. In connection with the execution and delivery of the
Participation Agreement, the Lease and the other Operative Agreements, and
subject to the terms and conditions hereof, (i) the Lessor desires to appoint
the Construction Agent as its sole and exclusive agent in connection with the
identification and acquisition of the Land (provided, title to the Land shall
be held in the name of the Lessor) and the development, construction,
installation, acquisition and testing of the Improvements and the Equipment in
accordance with the Plans and Specifications and (ii) the Construction Agent
desires, for the benefit of the Lessor, to identify and acquire the Land and to
cause the development, construction, installation, acquisition, and testing of
the Improvements, the Equipment and the other components of the Property
thereon in accordance with the Plans and Specifications and to undertake such
other liabilities and obligations as are herein set forth.
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree as follows:
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ARTICLE I
DEFINITIONS
Defined Terms.
Capitalized terms used but not otherwise defined in this Agreement
shall have the meanings set forth in the Participation Agreement, dated as of
November 15, 1996, among the Lessee, FSB, not in its individual capacity, but
solely as Owner Trustee under the Stuart Park Trust, and NationsBank of Texas,
N.A., as a Holder, a Lender and the Agent for the Lenders.
ARTICLE II
APPOINTMENT OF THE CONSTRUCTION AGENT
Appointment. Subject to the terms and conditions hereof, the
Lessor hereby irrevocably designates and appoints the Construction Agent as its
exclusive agent, and the Construction Agent accepts such appointment, in
connection with the identification and acquisition of the Land (provided, title
to the Land shall be held in the name of the Lessor) and the development,
construction, acquisition, installation, and testing of the Improvements, the
Equipment and the other components of the Property in accordance with the Plans
and Specifications on the Land, and pursuant to the terms of this Agreement,
the Participation Agreement and the other Operative Agreements.
Notwithstanding any provisions hereof or in any other Operative Agreement to
the contrary, the Construction Agent acknowledges and agrees that the Lessor
shall advance no more than the sum of the aggregate Commitment of the Lenders
plus the aggregate amount of the Holder Commitments of the Holders in regard to
the Property (including without limitation for any and all Advances in the
aggregate from the Lenders under the Credit Agreement and from the Holders
under the Trust Agreement).
Acceptance and Undertaking. The Construction Agent hereby
unconditionally accepts the agency appointment and undertakes, for the benefit
of the Lessor, to identify and acquire certain Land (provided, title to the
Land shall be held in the
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name of the Lessor) and the construction, development, acquisition,
installation, and testing of the Improvements, the Equipment and the other
components of the Property in accordance with the Plans and Specifications and
the Operative Agreements.
Term. This Agreement shall commence on the date hereof and
shall terminate on the Construction Period Termination Date.
Scope of Authority.
(a) The Lessor hereby expressly authorizes the
Construction Agent, or any agent or contractor of the Construction Agent, and
the Construction Agent unconditionally agrees, for the benefit of the Lessor,
to take all action necessary or desirable for the performance and satisfaction
of any and all of the Lessor's obligations under any construction agreement and
to fulfill all of the obligations of the Construction Agent including without
limitation:
(i) the identification and assistance
with the acquisition of the Land in accordance with the terms and
conditions of the Participation Agreement;
(ii) all design and supervisory functions
relating to the development, construction, acquisition, installation,
and testing of the related Improvements, Equipment and other
components of the Property and performing all engineering work related
thereto;
(iii) (A) negotiating and entering into
all contracts and arrangements to procure the equipment necessary to
construct the Property and (B) negotiating all contracts and
arrangements to develop, acquire, install, construct and test the
Improvements, the Equipment and the other components of the Property
on such terms and conditions as are customary and reasonable in light
of local and national standards and practices and the businesses in
which the Lessee is engaged;
(iv) obtaining all necessary permits,
licenses, consents, approvals, entitlements and other authorizations,
required under applicable Law (including
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without limitation Environmental Laws), from all Governmental
Authorities in connection with the construction, development,
acquisition, installation, construction and testing of the
Improvements, the Equipment and the other components of the Property
in accordance with the Plans and Specifications, and all of the
foregoing required for the use and occupancy of the Property;
(v) maintaining all books and records
with respect to the Property and the development, construction,
operation and management thereof; and
(vi) performing any other acts necessary
in connection with the identification and acquisition of the Land and
the construction, development, acquisition, installation, and testing
of the related Improvements, Equipment and all other additional
components of the Property in accordance with the Plans and
Specifications.
(b) Neither the Construction Agent nor any of its
Affiliates or agents shall enter into any contract in the name of the Lessor
without the Lessor's prior written consent.
(c) Subject to the terms and conditions of this Agreement
and the other Operative Agreements, the Construction Agent shall have sole
management and control over the construction, development, installation, and
testing means, methods, sequences and procedures with respect to the Property.
Delegation of Duties. The Construction Agent may execute any
of its duties under this Agreement by or through agents, contractors, employees
or attorneys-in-fact; provided, however, that no such delegation shall limit or
reduce in any way the Construction Agent's duties and obligations under this
Agreement.
Covenants of the Construction Agent. The Construction Agent
hereby covenants and agrees that it will:
(a) following the Construction Commencement Date, cause
the development, construction, acquisition, installation,
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and testing of the Property to be prosecuted in a good and workmanlike manner,
and in accordance with the (i) Plans and Specifications, (ii) the Construction
Budget, (iii) the contracts relating to the Improvements, the Equipment, other
components for the Property, and (iv) the construction contracts, the
construction schedule, prevalent industry practices and all Legal Requirements
and Insurance Requirements;
(b) [Intentionally omitted];
(c) cause the Completion Date for any Improvements to
occur on or before the Construction Period Termination Date, free and clear (by
removal or bonding) of Liens or claims for materials supplied or labor or
services performed in connection with the development, acquisition,
installation, construction or testing thereof;
(d) cause all material outstanding punch list items with
respect to such Improvements to be completed by the Completion Date;
(e) at all times subsequent to the initial Advance
respecting the Land (i) cause good and marketable title to the Property
(including the Land) to vest in the Owner Trustee subject only to Permitted
Liens, (ii) cause a valid, perfected, first priority Lien on the Property to be
in place in favor of the Agent (for the benefit of the Lenders) to the extent
provided in the Operative Agreements subject to the Permitted Exceptions, (iii)
file all necessary documents under the applicable real property law and Article
9 of the Uniform Commercial Code to perfect such title and Liens and (iv) not
permit Liens (other than those in favor of the Agent and Permitted Liens) to be
filed or maintained respecting the Property;
(f) no less than five (5) Business Days prior to the
scheduled date for the initial Construction Advance to be made in connection
with the Property, the Construction Agent shall deliver to the Lessor true,
complete and correct copies of the Construction Budget therefor. Thereafter,
the Construction Agent, on a monthly basis, shall deliver to the Lessor true,
correct and complete copies of any material modifications of the Construction
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Budget and progress reports regarding the development, acquisition,
installation, construction and testing of the Property;
procure insurance for the Property during the Construction
Period in accordance with the provisions of Article XIV of the Lease; and
(h) on or before the Construction Period Termination
Date, cause the Basic Term to commence with respect to the Property.
ARTICLE III
THE PROPERTY
Construction. The Construction Agent shall cause the (i)
Land to be acquired (provided title shall be held in the name of the Lessor)
and (ii) Improvements, the Equipment and all other components of the Property
to be developed, constructed, acquired, installed, tested, equipped, maintained
and used in full compliance with all Legal Requirements and Insurance
Requirements.
Amendments; Modifications.
(a) The Construction Agent may at any time revise, amend
or modify (i) the Plans and Specifications without the consent of the Lessor;
provided, that any such amendment to the Plans and Specifications does not (x)
result in the Completion Date of the Improvements occurring on or after the
Construction Period Termination Date or (y) result in the cost of all
Improvements exceeding the amount specified in the Construction Budget or the
aggregate total of the Available Commitments and the Available Holder
Commitments (any excess of the cost of Improvements over the then available
Lender and Holder funding being the "Unfunded Amount"), and (ii) the
Construction Budget and enter into any related amendments, modifications or
supplements without the consent of the Lessor; provided, that such revisions,
amendments or modifications to the Plans and Specifications or related
amendments, modifications or supplements to the
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Construction Budget do not exceed the then aggregate total of Available
Commitments and the Available Holder Commitments.
(b) The Construction Agent agrees that it will not
implement any revision, amendment or modification to the Plans and
Specifications for the Property if the aggregate effect of such revision,
amendment or modification, when taken together with any previous or
contemporaneous revision, amendment or modification to the Plans and
Specifications for the Property, would cause a material reduction in value in
excess of the cost reduction of such revision, amendment or modification of the
Property when completed, unless such revision, amendment or modification is
required by Legal Requirements.
3.3 Failure to Complete the Property; Payment of Maximum Residual
Guarantee Amount. If at any time prior to the Completion Date of the Property
(i) there occurs a Casualty (other than a Casualty caused by the Construction
Agent's negligence) or a Condemnation, the proceeds of which exceed or are
expected to exceed 10% of the Construction Budget or that will prevent the
Property from being completed by the Construction Period Termination Date, or
(ii) there shall occur a Force Majeure Event that will prevent the Property
from being completed by the Construction Period Termination Date, then in
either such event the Construction Agent on or prior to the date thirty (30)
days prior to the Construction Period Termination Date shall notify the Lessor,
the Agent, each Lender and each Holder of the occurrence of such event (said
notice being referred to as the "Section 3.3 Notice"), and the Lessor shall
then have an election (which such election shall be made at the direction of
the Agent) of one of the following options: (1) grant an extension of the
Construction Period Termination Date or (2) require the Lessee to pay to the
Lessor an amount equal to the Maximum Residual Guarantee Amount (provided,
however, Lessee may nevertheless exercise its Purchase Option). The failure of
the Construction Agent to give the Section 3.3 Notice to Lessor shall
constitute an irrevocable waiver by the Construction Agent to be governed by
the provisions of this Section 3.3 but such failure shall not terminate Lessee'
right to exercise its Purchase Option under Article XX of the Lease. The
Construction Period Termination Date shall be extended only if such extension
is consented to in writing by the Lessor,
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the Agent, the Majority Lenders and the Majority Holders on or prior to the
Construction Period Termination Date. The Lessor shall notify the Construction
Agent within thirty (30) days of receipt of the Section 3.3 Notice of the
option selected by the Lessor. If the Construction Period Termination Date is
not so extended, then within five (5) business days of Lessor's notification to
the Construction Agent that such extension shall not be permitted, the
Construction Agent shall pay to the Lessor the Maximum Residual Guarantee
Amount and shall surrender, or cause to be surrendered, the Property in
accordance with the terms and conditions of Section 10.1 of the Lease provided,
however, Lessee may, within such five (5) day period exercise its Purchase
Option and close the purchase of the Property in accordance with Article XX of
the Lease.
3.4 Failure to Complete the Property and Purchase Obligation. In
the event that (i) the Completion Date for the Property shall not occur on or
prior to the Construction Period Termination Date for any reason (except for
any reason described in Sections 3.3(i) unless Construction Agent fails to give
the Section 3.3 Notice) or (ii) the Construction Period Termination Date is not
extended by the Lessor, the Agent, the Majority Lenders and the Majority
Holders or (iii) the Construction Agent shall abandon or permanently
discontinue the construction and development of the Property (other than for a
Force Majeure Event as provided in Section 3.3(ii) above) which abandonment or
discontinuance shall be deemed to have occurred if no work at the Property is
undertaken or completed during a period of thirty (30) days (unless the
stoppage is a schedule stoppage due to normal weather consideration in which
such event, abandonment or discontinuance shall not be deemed to have accrued
unless such stoppage shall continue for more than ninety (90) days) or more, or
(iv) there shall occur any material Environmental Violation, then in any such
event the Construction Agent shall pay to Lessor, on a date designated by the
Construction Agent (which date shall be no more than thirty (30) days after the
occurrence of the applicable event) an aggregate amount equal to the liquidated
damages amount referenced in Section 5.3(b) of this Agreement and on such date
subject to receipt of such liquidated amount Lessor shall transfer and convey
to the Construction Agent all right, title and interest of Lessor in and to the
Property. At the cost
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and expense of the Construction Agent, the Lessor shall convey the Property "AS
IS, WHERE IS" and in its then present physical condition to the Construction
Agent or its designee free and clear of liens created by or through Lessor. If
the Construction Agent is not required to pay such liquidated damages, it shall
promptly and diligently complete the development, construction, acquisition,
refinancing, installation and testing of the Property in accordance with the
Plans and Specifications and with the terms hereof and cause the Completion
Date with respect to the Property to occur on or prior to the Construction
Period Termination Date. Any determination that an Environmental Violation is
immaterial for purposes of this Agreement shall not limit the obligation of
Lessee respecting such Environmental Violation under the Lease.
3.5 Change in Control. If as a result of one (1) or more
transactions prior to the Completion Date, any person or group of persons
(within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as
amended) other than Warburg Pincus Capital Company, L.P. or its Affiliates,
shall, without the approval of the board of directors of the Lessee, obtain
ownership or control of more than fifty percent (50%) of the common stock or
fifty percent (50%) of the voting power of the Lessee entitled to vote in the
election of members of the board of directors of the Lessee (any such event a
"Change in Control"), then the Lessor shall then have an election (which such
election shall be exercised at the direction of the Agent) of one of the
following options: (i) approve the Change in Control and continue the Lease on
the same terms and conditions or such other terms as Lessor and Lessee shall
agree upon, or (ii) treat the next succeeding Payment Date after such Change in
Control as a deemed Expiration Date whereupon the Lessee shall be entitled to
exercise those options as would otherwise be available to Lessee under the
Lease, including Article XX thereof as if the Expiration Date had occurred in
the ordinary course.
ARTICLE IV
PAYMENT OF FUNDS
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Right to Receive Construction Cost.
(a) In connection with the development, construction,
acquisition, installation, and testing of the Property and during the course of
the construction of the Improvements on the Property, the Construction Agent
may request that the Lessor advance funds for the payment of Land Acquisition
Costs or Project Costs, and the Lessor will comply with such request to the
extent provided for in the Participation Agreement. The Construction Agent and
the Lessor acknowledge and agree that the Construction Agent's right to request
such funds and the Lessor's obligation to advance such funds for the payment of
Land Acquisition Costs or Project Costs is subject in all respects to the terms
and conditions of the Participation Agreement and each of the other Operative
Agreements. Without limiting the generality of the foregoing it is
specifically understood and agreed that in no event shall the aggregate amounts
advanced by the Lenders and the Holders for Land Acquisition Costs or Project
Costs and any other amounts due and owing hereunder or under any of the other
Operative Agreements exceed the sum of the aggregate Commitment of the Lenders
plus the aggregate amount of the Holder Commitments, including without
limitation such amounts owing for (i) development, construction, acquisition,
installation, and testing of the Property, (ii) additional amounts which
accrue or become due and owing under the Credit Agreement or Trust Agreement as
obligations of the Lessor prior to the Completion Date (for interest payments
on the Loans or payments of the Holder Yield on the Holder Advances) or (iii)
any other purpose.
(b) The proceeds of any funds made available to the
Lessor to pay Land Acquisition Costs or Project Costs shall be made available
to the Construction Agent in accordance with the Requisition relating thereto
and the terms of the Participation Agreement. The Construction Agent will use
such proceeds only to pay the Land Acquisition Costs or Project Costs set forth
in the Requisition relating to such funds.
ARTICLE V
EVENTS OF DEFAULT
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Events of Default. If any one (1) or more of the following
events (each an "Event of Default") shall occur:
(a) the Construction Agent fails to apply any funds paid
by the Lessor to the Construction Agent within ten (10) days after the receipt
of the same in a manner consistent with the requirements of the Operative
Agreements and as specified in the applicable Requisition to the payment of
Land Acquisition Cost or Property Costs or for the development, construction,
acquisition, installation, and testing of the Property and related Improvements
and Equipment;
(b) each of the Completion Date and the Basic Term
Commencement Date with respect to the Property shall fail to occur for any
reason (other than as a result of the occurrence of an event described in
Sections 3.3(i) or (ii) hereof) on or prior to the Construction Period
Termination Date;
(c) any Lease Event of Default shall have occurred and
not be cured within any cure period expressly permitted under the terms of the
Lease; and
(d) the Construction Agent shall materially breach any of
its representations or warranties under any Operative Agreement to which it is
a party or shall fail to observe or perform any material term, covenant or
condition of this Agreement or any other Operative Agreement to which it is a
party other than as set forth in paragraphs (a), (b) or (c) of this Section
5.1;
then, in any such event, the Lessor may, in addition to the other rights and
remedies provided for in this Agreement, terminate this Agreement by giving the
Construction Agent written notice of such termination and upon the expiration
of the time fixed in such notice and the payment of all amounts owing by the
Construction Agent hereunder (including without limitation any amounts
specified under Section 5.3 hereof), this Agreement shall terminate. The
Construction Agent shall pay all costs and expenses incurred by or on behalf of
the Lessor, including without limitation fees and expenses of counsel, as a
result of any Event of Default hereunder.
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Damages. The termination of this Agreement pursuant to
Section 5.1 shall in no event relieve the Construction Agent of its liability
and obligations hereunder, all of which shall survive any such termination.
Remedies; Remedies Cumulative. (a) If an Event of Default
shall have occurred and be continuing, the Lessor shall have all rights
available at law, equity or otherwise.
(a) Upon the occurrence of an Event of Default, the
Lessor shall have (in addition to its rights otherwise described in this
Agreement or existing at law, equity or otherwise) the option (and shall be
deemed automatically, and without any further action, to have exercised such
option upon the occurrence of any Lease Event of Default arising under Sections
17.1(g), (h) (i) or (j) of the Lease) to transfer and convey to the
Construction Agent upon a date designated by the Lessor all right, title and
interest of the Lessor in and to the Property (including without limitation any
Land and/or any Improvements, any interest in any Improvements, any Equipment
whether complete or under construction). On any transfer and conveyance date
specified by the Lessor pursuant to this Section 5.3(b), (i) the Lessor shall
transfer and convey all of its right, title and interest in and to the Property
free and clear of the Lien of the Lease and all Lessor Liens, (ii) the
Construction Agent hereby covenants and agrees that it will accept such
transfer and conveyance of right, title and interest in and to the Property or
Construction Period Property and (iii) the Construction Agent hereby promises
to pay to the Lessor, as liquidated damages (it being agreed that it would be
impossible accurately to determine actual damages) but exclusive of the
indemnities payable under Section 13 of the Participation Agreement, an
aggregate amount equal to the Termination Value of the Property. The
Construction Agent specifically acknowledges and agrees that its obligations
under this Section 5.3(b), including without limitation its obligations to
accept the transfer and conveyance of the Property and its payment obligations
described in subparagraph (iii) of this Section 5.3(b) , shall be absolute and
unconditional under any and all circumstances and shall be performed and/or
paid, as the case may be, without notice or demand and without any abatement,
reduction, diminution, set-off, defense, counterclaim or
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recoupment whatsoever. Notwithstanding the foregoing provisions of this
Section 5.3(b), the Lessor shall have the right in its sole discretion to
rescind any exercise of its option under this Section 5.3(b) upon the giving of
its written confirmation of such rescission to the Construction Agent.
(b) The Construction Agent shall have the right to cure
an Event of Default hereunder with respect to the Property by purchasing or
causing the Lessee to purchase the Property from the Lessor for an amount equal
to the liquidated damages amount set forth in Section 5.3(b) of this Agreement.
(c) No failure to exercise and no delay in exercising, on
the part of the Lessor, any right, remedy, power or privilege under this
Agreement or under the other Operative Agreements shall operate as a waiver
thereof; nor shall any single or partial exercise of any right remedy, power or
privilege under this Agreement preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges provided in this Agreement are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
ARTICLE VI
THE LESSOR'S RIGHTS; THE CONSTRUCTION AGENT'S RIGHTS
Exercise of the Lessor's Rights. Subject to the Excepted
Rights and the Excepted Payments, the Construction Agent and the Lessor hereby
acknowledge and agree that, subject to and in accordance with the terms of the
Security Agreement made by the Lessor in favor of the Agent, the rights and
powers of the Lessor under this Agreement have been assigned to the Agent.
The Lessor's Right to Cure the Construction Agent's Defaults.
The Lessor, without waiving or releasing any obligation or Event of Default,
may (but shall be under no obligation to) remedy any Event of Default for the
account of and at the sole cost and expense of the Construction Agent. All
out-of-pocket costs and expenses so incurred (including without limitation fees
and expenses of counsel) , together with interest thereon at the
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Overdue Rate from the date on which such sums or expenses are paid by the
Lessor, shall be paid by the Construction Agent to the Lessor on demand.
ARTICLE VII
MISCELLANEOUS
Notices. All notices, requests and demands to or upon the
parties hereto to be effective shall be in writing including without limitation
by facsimile transmission), and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made when actually delivered or, in
the case of notice by facsimile transmission, when received and telephonically
confirmed, addressed as follows, or to such address as may be hereafter
notified in writing by the parties hereto:
If to the Lessor:
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Attention: Val T. Orton, Vice President
Telephone No.: (801) 246-5300
Telecopy No.: (801) 246-5053
with a copy to the Agent:
NationsBank of Texas, N.A.
901 Main Street, 64th Floor
Dallas, Texas 75202
Attention: Brian D. Corum
Telephone No.: (214) 508-0921
Telecopy No.: (214) 508-9390
and with a copy to:
Kennedy Covington Lobdell & Hickman, L.L.P.
NationsBank Corporate Center
100 No. Tryon Street, Suite 4200
Charlotte, North Carolina 28202-4006
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Attention: Glen B. Hardymon
Telephone No.: (704) 331-7446
Telecopy No.: (704) 331-7598
If to the Construction Agent:
LCI International, Inc.
8180 Greensboro Drive, Suite 800
McLean, Virginia 22102
Attention: John J. Dillon
Telephone No.: (703) 848-4490
Telecopy No.: (703) 848-4460
with copy to:
Squire, Sanders & Dempsey
41 South High Street
Columbus, Ohio 43215
Attention: Richard W. Rubenstein
Telephone No.: (614) 365-2700
Telecopy No.: (614) 365-2499
Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the Lessor, the Construction Agent and their
respective successors and the assigns of the Lessor. The Construction Agent
may not assign this Agreement or any of its rights or obligations hereunder in
whole or in part to any Person without the prior written consent of the Lessor.
GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF VIRGINIA WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
Submission To Jurisdiction; Waivers. Each party hereto hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal
action or proceeding relating to this Agreement and the other
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Operative Agreements to which it is a party, or for recognition and enforcement
of any judgement in respect thereof, to the state and federal courts located in
Mecklenburg County, North Carolina;
(b) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail) postage prepaid, to the
Borrower at its address set forth in Section 9.2 of the Credit Agreement or at
such other address of which the Agent shall have been notified pursuant
thereto;
(c) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction; and
(d) waives, to the maximum extent not prohibited by law,
any right it may have to claim or recover in any legal action or proceeding
referred to in this Section 7.4 any special, exemplary, punitive or
consequential damages.
Amendments and Waivers. Subject to Section 14.5 of the
Participation Agreement, the Lessor and the Construction Agent may, from time
to time, enter into written amendments, supplements or modifications hereto.
Counterparts. This Agreement may be executed in any number of
separate counterparts and all of said counterparts, when executed, taken
together shall be deemed to constitute one (1) and the same instrument.
Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Headings and Table of Contents. The headings and table of
contents contained in this Agreement are for convenience of
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reference only and shall not limit or otherwise affect the meaning hereof.
WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT ALLOWED BY
APPLICABLE LAW, THE LESSOR AND THE CONSTRUCTION AGENT IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
[SIGNATURE PAGES FOLLOW]
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
LCI INTERNATIONAL, INC., as the
Construction Agent
By:
-------------------------------------
Name:
---------------------------
Title:
--------------------------
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its
individual capacity, but
solely as Owner Trustee under
the STUART PARK TRUST, as the
Lessor
By:
-------------------------------------
Name:
---------------------------
Title:
--------------------------
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