EXHIBIT 10.31
EXECUTION COPY
THIRD AMENDMENT TO THE CREDIT AGREEMENT AND FORBEARANCE AGREEMENT
THIRD AMENDMENT to the CREDIT AGREEMENT AND FORBEARANCE AGREEMENT,
dated as of March 25, 2002, to the Credit Agreement dated as of October 8, 1999
(as amended by the First Amendment to Credit Agreement and Equity Contribution
Agreements dated as of December 14, 1999 and the Second Amendment to Credit
Agreement dated as of November 16, 2000, the "CREDIT AGREEMENT") among Flag
Atlantic Limited, a company organized and existing under the laws of Bermuda
(the "COMPANY"), the banks and other financial institutions party thereto (the
"LENDERS"), Barclays Bank Plc, as the administrative agent (in such capacity,
the "ADMINISTRATIVE AGENT") for the Lenders, Dresdner Bank AG, New York Branch,
as the documentation agent, Westdeutsche Landesbank Girozentrale, New York
Branch, as the syndication agent, and Barclays Capital, as the lead arranger.
Capitalized terms not otherwise defined herein shall have the same meanings as
specified therefor in the Credit Agreement.
PRELIMINARY STATEMENTS
(1) The Company, the Administrative Agent and the Lenders have been in
discussions and are trying to determine whether one or more of the following
Events of Default have occurred and are continuing:
(a) an Event of Default under Article VII -- subsection (a) of the
Credit Agreement as a result of the failure of the Company to prepay the
outstanding Loans, together with accrued and unpaid interest, on the
Conversion Date from the proceeds of the payment made by Teleglobe USA Inc.
("TELEGLOBE") on such date pursuant to that certain Indefeasible Right of
Use Agreement dated as of the ___ [sic] day of October, 1999 among the
Company, Flag Atlantic USA, Limited and Teleglobe, as may be required under
Sections 2.9(a) and 8.8(c) of the Credit Agreement or, in the alternative,
Section 8.9(b) of the Credit Agreement;
(b) Events of Defaults under Article VII -- subsection (b) of the
Credit Agreement as a result of the failure of the Company, by making
certain payments to the Contractor for upgrades on the Project, to comply
with (i) the provisions of Section 6.9 thereof that prohibit the payment by
the Company or any of its Subsidiaries of amounts for the construction and
installation of the Project in excess of the Project Budget or the
Operating Budget, as applicable, other than from Permitted Sources, (ii)
the provisions of Section 6.20(a) thereof that prohibit the Company or any
of its Subsidiaries from and after the Conversion Date from making any
expenditure in respect of the purchase of capital assets except for
expenditures which could not reasonably be expected to adversely affect the
Project and (A) are included in Project Budget or (B) do not cause the
Company and its Subsidiaries to spend more than $1,000,000 (unless such
excess comes from Permitted Sources or amounts on deposit from the Capacity
Upgrades Reserve Account) and (iii) the provisions of Section 6.10 thereof
that prohibit any material amendment, supplement or other modification or
waiver of any Project Document that, among other things, would require
additional amounts to be paid by the Company thereunder unless provided for
from Permitted Sources;
(c) Events of Defaults under Article VII -- subsection (b) of the
Credit Agreement as a result of the failure of the Company, by permitting
certain agreements entered into prior to the date of this Agreement for
"packaged" sales of Capacity of the Company and one or more of its
Affiliates to be entered into by (and payments by customers thereunder to
be made to) FLAG Telecom Holdings Ltd. and/or one or more of its
Affiliates, to comply with (i) the provisions of Section 6.13 thereof that
require all such agreements to be entered into directly by the Company and
(ii) the provisions of Section 6.18 thereof that require all agreements
with Affiliates of the Company to be on terms no less favorable to the
Company or its applicable Subsidiary than those that the Company or such
Subsidiary could obtain in an arm's-length transaction with a Person that
is not an Affiliate thereof;
(d) a Default or an Event of Default under Article VII -- subsection
(c) of the Credit Agreement as a result of the failure of the Company to
deliver to the Administrative Agent, with a copy for each Lender, the
audited consolidated financial statements of the Company and its
consolidated Subsidiaries for the fiscal year ended December 31, 2001 as
required under Section 5.2(a) of the Credit Agreement, together with such
certificates and other related information as is required to be delivered
with such audited consolidated financial statements under Sections 5.2(c)
and 5.2(d) of the Credit Agreement;
(e) an Event of Default under Article VII - subsection (b) of the
Credit Agreement as a result of the failure of the Company to comply with
the provisions of Section 5.9(a) of the Credit Agreement that require the
delivery of written notice to the Administrative Agent of the occurrence
and continuance of the Events of Defaults described in clauses (a), (b),
(c), (d) and (f) of this Preliminary Statement (1) promptly after a
Responsible Officer of the Company had knowledge thereof; and
(f) an Event of Default under Article VII - subsection (d) of the
Credit Agreement as a result of the material inaccuracy of one or more
representations and warranties made by the Company or any of its
Subsidiaries or the Sponsor solely as a result of (i) the occurrence and
continuance of one or more of the Events of Defaults described above in
clauses (a), (b), (c), (d) or (e) of this Preliminary Statement (1) or (ii)
non-cash charges for asset impairment write-downs during the period ending
December 31, 2001 of up to $360,000,000, which non-cash charges might be
expected to have a Material Adverse Effect.
The Events of Defaults described above (to the extent any such Event of Default
shall have occurred and be continuing) are hereinafter collectively referred to
as the "SPECIFIED EVENTS OF DEFAULT".
(2) The Company has requested that the Administrative Agent and the
Lenders agree to forbear during the Forbearance Period (as hereinafter defined)
from exercising all default-related remedies against the Company or any of the
other Obligors under the Financing Documents as a result of the occurrence and
continuance of the Specified Events of Default.
(3) The Administrative Agent and the Lenders have indicated their
willingness to agree to the forbearance described above in Preliminary Statement
(2) to this Agreement on the terms and subject to the satisfaction of the
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
SECTION 1. FORBEARANCE. (a) The Administrative Agent and the Lenders
hereby agree solely during the Forbearance Period to forbear from the exercise
of their default-related remedies against the Company or any of the other
Obligors solely to the extent the availability of any such remedy arises
exclusively from the Specified Events of Default; PROVIDED that the Company
shall comply at all times during the Forbearance Period with all of the
provisions, limitations, restrictions or prohibitions that
2
would otherwise be effective or applicable under any of the Financing Documents
(whether or not during the occurrence and continuance of any Default or Event of
Default). For the purposes of this Agreement, "FORBEARANCE PERIOD" means the
period commencing on the Effective Date and ending on the earliest to occur (any
such occurrence being a "FORBEARANCE TERMINATION EVENT") of: (i) Xxxxx 00, 0000,
(xx) the occurrence of any Default or Event of Default other than a Specified
Event of Default, (iii) the failure of the Company to comply with any of its
obligations under this Agreement, including without limitation, the provisions
of Section 3 hereof, or the inaccuracy in any material respect of any
representation, warranty or acknowledgment made by the Company in this Agreement
or (iv) the commencement by any holder of Indebtedness of the Company or any of
its Subsidiaries (other than Indebtedness under the Loan Documents) of the
exercise of any proper remedy or the taking by any such party of any proper
action in furtherance of the collection or enforcement of any claim or Lien
against the Company or any of its Subsidiaries or any of their respective
assets. Upon the occurrence of a Forbearance Termination Event, the agreement of
the Administrative Agent and the Lenders to forbear with respect to the exercise
of any default-related remedy provided for under or in respect of any of the
Financing Documents shall immediately terminate without the requirement of any
demand, presentment, protest or notice of any kind, all of which the Company
hereby expressly waives. The Company hereby agrees that the Administrative Agent
and the Lenders may at any time thereafter proceed to exercise any and all of
their respective rights and remedies under any or all of the Financing Documents
and/or applicable law, including, without limitation, their respective rights
and remedies in connection with any or all Defaults or Events of Default,
including, without limitation, the Specified Events of Default.
(b) This Agreement shall constitute and be a part of the Financing
Documents for all purposes of this Agreement, the Credit Agreement and the other
Financing Documents and any construction or interpretation thereof. Any
agreement to extend the Forbearance Period must be set forth in writing and
signed by the Administrative Agent and the Majority Lenders.
(c) THE COMPANY ACKNOWLEDGES AND AGREES THAT THE AGREEMENT OF THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREUNDER TO FORBEAR WITH RESPECT TO THE
EXERCISE OF THEIR DEFAULT-RELATED REMEDIES AGAINST THE COMPANY OR ANY OF THE
OTHER OBLIGORS WITH RESPECT TO THE SPECIFIED EVENTS OF DEFAULT SHALL NOT
CONSTITUTE A WAIVER OF ANY OR ALL SUCH SPECIFIED EVENTS OF DEFAULT OR, EXCEPT AS
EXPRESSLY PROVIDED IN SECTION 2 HEREOF, AN AMENDMENT OF THE CREDIT AGREEMENT OR
ANY OF THE OTHER FINANCING DOCUMENTS AND THAT, SUBJECT TO THE TERMS OF THIS
AGREEMENT, THE ADMINISTRATIVE AGENT AND THE LENDERS EXPRESSLY RESERVE ALL RIGHTS
AND REMEDIES THAT THE ADMINISTRATIVE AGENT AND THE LENDERS NOW OR MAY IN THE
FUTURE HAVE UNDER ANY OR ALL THE FINANCING DOCUMENTS AND/OR APPLICABLE LAW IN
CONNECTION WITH ALL DEFAULTS AND EVENTS OF DEFAULT (INCLUDING, WITHOUT
LIMITATION, THE SPECIFIED EVENTS OF DEFAULT).
SECTION 2. AMENDMENTS OF THE CREDIT AGREEMENT. The Credit Agreement
is, upon the occurrence of the Effective Date, hereby amended in the following
manner:
(a) The definition of "SPECIFIED PARTICIPANT" set forth in Section 1.1
of the Credit Agreement is hereby amended and restated in its entirety to
read as follows:
"SPECIFIED PARTICIPANT" shall be the collective reference to the
Company, FLAG Atlantic Holdings and Flag Telecom Holdings Ltd. and at
any time prior to the expiration of the Warranty Period, Alcatel."
(b) Article VII - subsections (q) and (r) of the Credit Agreement are
hereby amended and restated in its entirety to read as follows:
3
"(q) the Company, FLAG Atlantic Holdings or Flag Telecom Holdings
Ltd. shall fail to make any payment (whether of principal or interest
and regardless of amount) in respect of any Material Indebtedness
within any applicable grace period, when and as the same shall become
due and payable; or
(r) any event or condition occurs that results in any Material
Indebtedness of the Company, FLAG Atlantic Holdings or Flag Telecom
Holdings Ltd. becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of
time or both) the holder or holders of any Material Indebtedness of
the Company, FLAG Atlantic Holdings or Flag Telecom Holdings Ltd. or
any trustee or agent on its or their behalf to cause any such Material
Indebtedness to become due, or requires the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity;
or".
SECTION 3. COVENANTS. (a) From the date of this Agreement until the
occurrence of a Forbearance Termination Event, the Company and, by its execution
and delivery of this Agreement, Flag Telecom Holdings Ltd. agree to transfer,
and to cause each of their applicable Subsidiaries to transfer, to the Company
or its applicable Subsidiary, within three Business Days after receipt thereof,
any and all payments received thereby in respect of sales, leases or other
dispositions of Capacity of the Company or any of its Subsidiaries or capacity
on other telecommunications systems acquired by the Company or any of its
Subsidiaries.
(b) From the date of this Agreement until the occurrence of a
Forbearance Termination Event, the Company:
(i) shall not have the right to request or obtain, and no Lender shall
have any obligation to make, any Revolving Credit Loan or any other
extension of credit under the Credit Agreement or any of the other
Financing Documents; and
(ii) shall not make any payments to any Person other than (A) payments
of up to $14,500,000 in the aggregate from amounts on deposit in the
Revenue Account and the Current Account for Operating Expenses that are due
and payable by their terms on or prior to April 30, 2002, in each case
which Operating Expenses in excess of $200,000 are specified on Annex A
hereto, and (B) payments of up to $6,000,000 in the aggregate from amounts
on deposit in the Maintenance Reserve Account, the Construction Account and
the Operating Reserve Account so long as each such payment is permitted
under the terms of the Credit Agreement, after giving effect to the terms
of this Agreement.
SECTION 4. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS
AGREEMENT. This Agreement shall become effective as of the first date (the
"EFFECTIVE DATE") on which each of the following conditions precedent shall have
been satisfied, which date must occur on or prior to March 28, 2002:
(a) The Administrative Agent shall have received counterparts of (i)
this Agreement executed by the Company, Flag Telecom Holdings Ltd. and the
Majority Lenders or, as to any of the Lenders, advice satisfactory to the
Administrative Agent that such Lender has executed and delivered this
Agreement and (ii) the Consent to this Agreement attached hereto executed
by FLAG Atlantic Holdings and each of the Obligors (other than the
Company).
(b) The Company shall direct the Administrative Agent in writing
(including, without limitation, by providing the Administrative Agent with
an Expense Certificate in the form of
4
Exhibit J to the Credit Agreement updated as of not more than five Business
Days prior to the Effective Date) to apply the aggregate proceeds on
deposit in the Pre-Sale Proceeds Account and the Revenue Account on the
Effective Date in the following manner:
(i) FIRST, up to $19,765,100 in the aggregate (A) to the Persons
entitled thereto, for the payment of all Operating Expenses and
capital expenditures or income taxes of the Company or any of its
Subsidiaries then due and owing in item (1) of such Expense
Certificate and (B) to the Current Account, for the payment of the
amounts identified as Operating Expenses and capital expenditures or
income taxes of the Company or any Subsidiary expected to be due and
owing prior to the next Operating Expense Transfer Date in item (2) of
such Expense Certificate;
(ii) SECOND, for the account of the Term Loan Lenders, the
prepayment in full of the scheduled principal payments with respect to
the Term Loans due on or prior to March 31, 2002, together with,
unless otherwise paid under subclause (b)(i) of this Section 4, all
accrued and unpaid interest thereon which the Administrative Agent
certifies to the Company to be due and payable on such date;
(iii) THIRD, for the account of the Revolving Credit Lenders, the
prepayment the aggregate principal amount of all Revolving Credit
Loans outstanding on the Effective Date, together with, unless
otherwise paid under subclause (b)(i) of this Section 4, all accrued
and unpaid interest thereon which the Administrative Agent certifies
to the Company to be due and payable on such date;
(iv) FOURTH, to the Maintenance Reserve Account, the Construction
Account and the Operating Reserve Account (A) not more than $6,000,000
in the aggregate LESS the aggregate amount on deposit in the
Maintenance Reserve Account, the Construction Account and the
Operating Reserve Account immediately prior to any deposit of funds
pursuant to this subclause (b)(iv); and
(v) FIFTH, for the account of the Term Loan Lenders, (A)
$17,000,000 of the remaining proceeds on deposit in the Pre-Sale
Proceeds Account and the Revenue Account on the Effective Date shall
be applied to the prepayment of the Term Loans outstanding on such
date and to the remaining scheduled principal payments thereof in
inverse order of maturity and (B) unless otherwise paid under
subclause (b)(i) of this Section 4, such additional amount of the
remaining proceeds on deposit in the Pre-Sale Proceeds Account and the
Revenue Account on the Effective Date shall be applied to the payment
of accrued and unpaid interest on such prepayment of the Term Loans
which the Administrative Agent certifies to the Company to be due and
payable on such date.
(c) The Company shall have delivered to the Administrative Agent, with
a copy for each Lender, its unaudited consolidated balance sheet and
related consolidated statements of income, retained earnings and change in
cash flow as of the end of and for the fiscal year ended December 31, 2001,
setting forth in each case in comparative form the figures for the previous
fiscal year, all certified by a Responsible Officer of the Company as
presenting fairly in all material respects the financial condition and
results of operations of the Company and its consolidated Subsidiaries in
accordance with GAAP consistently applied.
(d) The representations and warranties contained in Section 5 of this
Agreement and each of the Financing Documents shall be true and correct in
all material respects on and as of the Effective Date, before and after
giving effect to this Agreement, as though made on and as of
5
such date (except for any such representation and warranty that, (i) by its
terms, refers to a specific date other than the date first above written,
in which case it shall be true and correct in all material respects as of
such earlier date and (ii) the material inaccuracy of which in and of
itself comprises a Specified Event of Default).
(e) No Default or Event of Default shall have occurred and be
continuing or shall occur after giving effect to this Agreement (other than
the Specified Events of Default).
(f) All of the accrued reasonable fees and expenses of the
Administrative Agent (including the accrued reasonable fees and expenses of
counsel for the Administrative Agent) in connection with this Agreement and
the other Financing Documents shall have been paid in full.
The effectiveness of this Agreement is further conditioned upon the accuracy in
all material respects of all of the factual matters described herein. This
Agreement is subject to the provisions of Section 10.2 of the Credit Agreement.
SECTION 5. REPRESENTATIONS AND WARRANTIES. To induce the
Administrative Agent and the Lenders to enter into this Agreement, the Company
hereby represents and warrants to the Administrative Agent and the Lenders:
(a) The Company, each of its Subsidiaries and Flag Telecom Holdings,
Ltd. (i) have the respective corporate power and authority to execute,
deliver and perform this Agreement and the attached Consent, as applicable,
and (ii) have taken all necessary corporate and other action to authorize
the execution, delivery and performance of this Agreement and the attached
Consent, as applicable, and the consummation of the transactions
contemplated hereby.
(b) The execution, delivery and performance by the Company, each of
its Subsidiaries and Flag Telecom Holdings Ltd. of this Agreement and the
attached Consent, as applicable, and the consummation of the transactions
contemplated hereby and thereby (i) do not and will not violate or result
in a breach of any Applicable Law or any judgment, order or decree of any
court, arbitrator or other Governmental Authority, (ii) do not and will not
violate any organizational document of the Company, any of its Subsidiaries
or Flag Telecom Holdings Ltd., (iii) do not and will not violate or result
in a default under any Contractual Obligation of the Company, any of its
Subsidiaries or Flag Telecom Holdings Ltd and (iii) will not result in, or
require, the creation or imposition of any Lien on any of the properties or
revenues of the Company, any of its Subsidiaries, Flag Telecom Holdings
Ltd. or the Project.
(c) No consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or any other Person is
required in connection with this Agreement or the attached Consent or the
execution, delivery, performance, validity or enforceability hereof.
(d) This Agreement and the attached Consent have been duly executed
and delivered on behalf of the Company, each of its Subsidiaries party
thereto and Flag Telecom Holdings Ltd. This Agreement and the attached
Consent, when executed, constitute a legal, valid and binding obligation of
the Company, each of its Subsidiaries party thereto and Flag Telecom
Holdings Ltd., enforceable against the Company, each such Subsidiary and
Flag Telecom Holdings Ltd. in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
6
(e) The representations and warranties contained in this Section 5 and
each of the Financing Documents are true and correct in all material
respects on and as of the Effective Date, before and after giving effect to
this Agreement, as though made on and as of such date (except for any such
representation and warranty that, (i) by its terms, refers to a specific
date other than the date first above written, in which case it shall be
true and correct in all material respects as of such earlier date and (ii)
the material inaccuracy of which in and of itself comprises a Specified
Event of Default).
(f) No Default or Event of Default has occurred and is continuing or
will occur after giving effect to this Agreement (other than the Specified
Events of Default).
SECTION 6. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. (a) On and
after the Effective Date, each reference in the Credit Agreement to "THIS
AGREEMENT"; "HEREUNDER", "HEREOF" or words of like import referring to the
Credit Agreement, and each reference in the Notes and each of the other
Financing Documents to "THE CREDIT AGREEMENT", "THEREUNDER", "THEREOF" or words
of like import referring to the Credit Agreement, shall mean and be a reference
to the Credit Agreement, as amended and otherwise modified hereby.
(b) The Credit Agreement and each of the other Financing Documents, as
amended and otherwise modified by the amendments and modifications specifically
provided above, are and shall continue to be in full force and effect and are
hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Agreement shall
not operate as a waiver of any right, power or remedy of the Administrative
Agent or any of the Lenders under any of the Financing Documents, nor constitute
a waiver of any provision of any of the Financing Documents.
SECTION 7. COSTS AND EXPENSES. The Company hereby agrees to pay on
demand all reasonable costs and expenses of the Administrative Agent (including,
without limitation, the reasonable fees and expenses of counsel for the
Administrative Agent) in connection with the preparation, execution, delivery,
administration, amendment and modification of this Agreement and all of the
instruments, agreements and other documents delivered or to be delivered in
connection herewith, all in accordance with the terms of Section 10.3 of the
Credit Agreement.
SECTION 8. NO DEFENSES, RELEASE. (a) Neither the Company nor any of
the other Obligors has any claims, counterclaims, offsets or defenses to the
Financing Documents or the Obligations, or if any such Person does have any
claims, counterclaims, offsets or defenses to the Financing Documents or the
Obligations, the same are hereby waived, relinquished and released in
consideration of the execution and delivery of this Agreement by the
Administrative Agent and the Lenders. By its execution hereof and in
consideration of the mutual covenants contained herein and the forbearance and
other accommodations granted to the Company hereunder, the Company, on behalf of
itself and each of the Subsidiaries of the Company party to any Financing
Document and its and their successors and assigns, hereby expressly forever
waives, releases and discharges any and all claims (including, without
limitation, cross-claims, counterclaims, rights of setoff and recoupment),
causes of actions, demands, suits, costs, expenses and damages (collectively,
the "CLAIMS") any of them may have or allege to have (and all defenses which may
arise out of any of the foregoing) of any nature, description or kind
whatsoever, whether known or unknown, whether now or hereafter arising, and
whether arising in law or at equity, against any or all of the Administrative
Agent and the Lenders and their respective affiliates, equityholders and
"controlling persons" (within the meaning of the United States federal
securities laws) and their respective successors and assigns and each and all of
the employees, directors, officers, attorneys, agents and other representatives
of each of the foregoing (collectively, the "RELEASED PARTIES"), based in whole
or in part on facts, whether or not known, up to and including the later of date
7
first above written and the Effective Date. Acceptance by the Company of any
Loan, extension of credit under the Credit Agreement or other financial
accommodations made by the Administrative Agent or any Lender after the
Effective Date (including, without limitation, the accommodations contained in
this Agreement) shall constitute a ratification, adoption and confirmation by
the Company and the other Obligors of the foregoing general release of all
Claims against any Released Party which are based in whole or in part on the
facts, whether or not now known or unknown, existing on or prior to the date of
receipt of any such Loan, extension of credit or other financial accommodation.
In entering into this Agreement, the Company has consulted with and has been
represented by counsel and expressly disclaims any reliance on any
representations, acts or omissions by any of the Released Parties and hereby
agrees and acknowledges that the validity and effectiveness of the releases set
forth above does not depend in any way on any such representation, acts and/or
omissions or the accuracy, completeness or validity thereof. The provisions of
this Section 8 shall survive the termination of the Credit Agreement and the
other Financing Documents and payment in full of all Obligations and all other
amounts owing thereunder.
(b) The Company and the other Obligors agree that, from and after the
later of the date first above written and the Effective Date, neither the
Company nor any other Obligor shall commence or prosecute any action, suit,
litigation or proceeding against any of the Released Parties to collect or
enforce any Claim.
(c) The Company represents and warrants that it has not assigned to
any person, partnership, corporation or other entity any Claim. In the event
that the foregoing representation and warranty is, or is purported to be,
untrue, the Company agrees to indemnify and hold harmless the Released Parties
against, and to pay, any and all actions, demands, obligations, causes of
action, decrees, awards, claims, liabilities, losses and costs, (including, but
not limited to, reasonable expenses of investigation and fees and expenses of
counsel) that any of the Released Parties may sustain or incur as a result of
the breach or purported breach of the foregoing representation and warranty.
SECTION 9. INTEGRATION; AMENDMENT. This Agreement sets forth in full
the terms of agreement between the parties with respect to the amendment,
forbearance and release described herein and is intended as the full, complete
and exclusive agreement governing the relationship between the parties with
respect to such forbearance and release. This Agreement supersedes all
discussions, promises, representations, warranties, agreements and
understandings between the parties with respect to the forbearance and release
described herein.
SECTION 10. NO THIRD PARTY BENEFICIARIES. This Agreement shall be
binding upon and inure to the benefit of the Company, the Administrative Agent
and the Lenders and their respective successors and assigns. No Person other
than the parties hereto and any other Lender and, in the case of Section 8
hereof, the Released Parties shall have any rights hereunder or be entitled to
rely on this Agreement, and all third-party beneficiary rights (other than the
rights of the Released Parties under Section 8 hereof and any other Lender) are
hereby expressly disclaimed.
SECTION 11. EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 12. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
8
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
FLAG ATLANTIC LIMITED
By
-------------------------------------------
Name:
Title:
By
-------------------------------------------
Name:
Title:
FLAG TELECOM HOLDINGS LTD.
By
-------------------------------------------
Name:
Title:
By
-------------------------------------------
Name:
Title:
BARCLAYS BANK PLC, as the Administrative
Agent
By:
------------------------------------------
Name:
Title:
BARCLAYS BANK PLC
as the Lead Arranger and a Lender
By
-------------------------------------------
Name:
Title:
9
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as
Documentation Agent and Lender
By
-------------------------------------------
Name:
Title:
By
-------------------------------------------
Name:
Title:
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH, as
Syndication Agent and a Lender
By
-------------------------------------------
Name:
Title:
By
-------------------------------------------
Name:
Title:
AUSTRALIA AND NEW ZEALAND BANKING
GROUP LTD.
By
-------------------------------------------
Name:
Title:
10
BANK OF SCOTLAND
By
-------------------------------------------
Name:
Title:
CITY NATIONAL BANK
By
-------------------------------------------
Name:
Title:
CREDIT LYONNAIS
By
-------------------------------------------
Name:
Title:
DG BANK
By
-------------------------------------------
Name:
Title:
By
-------------------------------------------
Name:
Title:
11
ERSTE BANK DER OESTERRIECHISCHEN
SPARKASSEN AG
By
-------------------------------------------
Name:
Title:
By
-------------------------------------------
Name:
Title:
GULF INTERNATIONAL BANK B.S.C.
By
-------------------------------------------
Name:
Title:
By
-------------------------------------------
Name:
Title:
BAYERISCHE HYPO-UND VEREINSBANK, AG,
NEW YORK BRANCH
By
-------------------------------------------
Name:
Title:
By
-------------------------------------------
Name:
Title:
12
IKB DEUTSCHE INDUSTRIEBANK AG
LUXEMBOURG BRANCH
By
-------------------------------------------
Name:
Title:
By
-------------------------------------------
Name:
Title:
KBC FINANCE IRELAND
By
-------------------------------------------
Name:
Title:
By
-------------------------------------------
Name:
Title:
LANDESBANK HESSAN-THURINGEN
GIROZENTRALE
By
-------------------------------------------
Name:
Title:
By
-------------------------------------------
Name:
Title:
13
LANDESBANK SACHEN GIROZENTRALE
By
-------------------------------------------
Name:
Title:
By
-------------------------------------------
Name:
Title:
MITSUBISHI TRUST & BANKING CORP.
By
-------------------------------------------
Name:
Title:
NIB CAPITAL BANK
By
-------------------------------------------
Name:
Title:
RABOBANK INTERNATIONAL
By
-------------------------------------------
Name:
Title:
By
-------------------------------------------
Name:
Title:
14
RAIFFEISEN ZENTRALBANK OSTERREICH
AKTIENGESELLSCHAFT
By
-------------------------------------------
Name:
Title:
By
-------------------------------------------
Name:
Title:
SOCIETE GENERALE
By
-------------------------------------------
Name:
Title:
SUMITOMO BANK LIMITED
By
-------------------------------------------
Name:
Title:
THE ROYAL BANK OF SCOTLAND PLC
By
-------------------------------------------
Name:
Title:
15
