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EXHIBIT 10.10(c)
CONSENT AND AMENDMENT XX. 0
XXXXXXX XXX XXXXXXXXX XX. 0, dated as of October 30, 1998 (this
"Agreement"), by and among WORLDPORT INTERNATIONAL, INC., a Delaware
corporation (the "Company"), WORLDPORT COMMUNICATIONS, INC., a Delaware
corporation (the "Parent"), the Lenders (as defined in the Credit Agreement)
which are a party hereto (including Bankers Trust Corporation, in its
individual capacity) and BANKERS TRUST COMPANY, as Administrative Agent (in
such capacity, the "Agent") and Collateral Agent (in such capacity, the
"Collateral Agent") and as joint creditor with the other Lenders under the
Credit Agreement, each as defined below.
W I T N E S S E T H:
WHEREAS, the Company and the Parent are parties to a Credit Agreement
dated as of June 23, 1998 (as in effect, the "Credit Agreement") with the
Lenders, the Agent and the Collateral Agent;
WHEREAS, on October 21, 1998, said parties entered into a Consent and
Amendment No. 2 to the Credit Agreement wherein the Agent and the Lenders
consented to the incurrence by the Company of a secured loan from Bankers Trust
Corporation in an aggregate principal amount of $1,000,000 (the "Additional
Loan");
WHEREAS, the Parent and the Company have requested that the Agent and
the Lenders consent to the incurrence by the Company of a loan from Bankers
Trust Corporation in an aggregate principal amount of $2,500,000 (the "Second
Additional Loan"), which loan shall (i) be guaranteed by each member of the
Group, (ii) be secured by a Lien granted by each member of the Group in the
Collateral, (iii) rank senior to the Obligations under the Credit Agreement and
(iv) be governed by the letter agreement, note and other documents set forth in
Exhibit A;
WHEREAS, the proceeds of the Second Additional Loan will be used,
among other things, to repay in full the Additional Loan, together with all
accrued interest thereof;
WHEREAS, the Parent and the Company have requested that the Agent and
the Lenders, in accordance with the terms of the Credit Agreement, consent to
the incurrence by the Company
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of the Second Additional Loan, the guarantee thereof by the Group and the Lien
securing the Second Additional Loan, subject to the terms and conditions set
forth herein.
NOW THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereto agree to the following:
1. Defined Terms. Capitalized terms used but not otherwise
defined herein shall have the respective meanings ascribed thereto in the
Credit Agreement.
2. Consent. The Agent and the Lenders hereby grant their consent
to the incurrence of the Second Additional Loan to be provided by Bankers Trust
Corporation, to the guarantee thereof by the Group and to the granting of a
Lien in the Collateral by the Group to secure the Obligations in respect of the
Second Additional Loan, which Lien shall rank senior to the lien securing the
Obligations.
3. Amendments. Effective on the Effective Date (as herein
defined):
A. The following definitions are added to Section 1.01
of the Credit Agreement in their appropriate alphabetical order:
"Second Short-Term Note" means that certain promissory note
of the Borrower to Bankers Trust Corporation dated October
30, 1998, in an aggregate principal amount of $2,500,000,
maturing November 6, 1998.
"Second Short-Term Note Letter Agreement" means the Letter
Agreement dated October 30, 1998 among Bankers Trust Company,
Bankers Trust Corporation, the Company, the Parent, the other
Loan Parties and other parties which are a party thereto.
B. The definition of "Finance Documents" set forth in
Section 1.1 of the Credit Agreement is amended by adding the phrase
"the Second Short-Term Note, the Second Short-Term Note Letter
Agreement and the other Documents (as defined in the Second Short-Term
Note Letter Agreement)" after the phrase "each Assignment and
Assumption Agreement" appearing therein.
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C. Section 7.1(a) of the Credit Agreement is amended by
adding the word "or" at the end of subclause (ii) thereof and adding a
new subclause (iii) which shall read as follows:
(iii) An "Event of Default" shall have occurred under and
as defined in the Second Short-Term Note Letter Agreement.
4. The Company and the Parent hereby represent and warrant that
the representations and warranties set forth in Article IV of the Credit
Agreement and each other Finance Document shall be true and correct in all
material respects as of the date hereof as if made on such date.
5. Applicable Law; Submission to Jurisdiction. THIS AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK.
6. No Novation. This Agreement shall not extinguish the
obligations for the payment of money outstanding under the Credit Agreement or
any Note or discharge or release the Lien or priority of any security
agreement, any pledge agreement or any other security therefor or discharge any
obligation under any guaranty. Nothing herein contained shall be construed as a
substitution or novation of the Obligations outstanding under the Credit
Agreement or instruments securing the same, which shall remain in full force
and effect, except as modified hereby or by instruments executed concurrently
herewith. Nothing expressed or implied in this Agreement, the Credit Agreement,
or any other document contemplated hereby or thereby shall be construed as a
release or other discharge of the Company, the Parent or any Guarantor under
the Credit Agreement or any Pledgor or Grantor under any Security Document from
any of its obligations and liabilities as a "Company", "Parent", "Guarantor",
"Pledgor" or "Grantor" under the Credit Agreement or the Security Documents or
any other Finance Document. Whenever the term "Credit Agreement" is used in any
of the Finance Documents it shall mean and refer to the Credit Agreement as
modified pursuant hereto. Each of the Credit Agreement and the other Finance
Documents shall remain in full force and effect, except as expressly modified
hereby.
7. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one contract.
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8. Headings. The headings of this Agreement are for convenience
of reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this
Agreement.
9. Effectiveness. This Agreement shall become effective as of
the date (the "Effective Date") when copies hereof which, when taken together,
bear the signatures of each of the Company, the Parent, the Agent, the
Collateral Agent, the Majority Lenders and the other Loan Parties which are a
party hereto have been received by the Agent.
10. Payment of Expenses. In furtherance of the provisions of
Section 9.1 of the Credit Agreement, the Parent and Company shall jointly and
severally, whether or not the transactions hereby contemplated are consummated,
upon demand of the Agent pay all reasonable out-of-pocket costs (including
legal fees), charges and expenses of the Agent and Collateral Agent in
connection with the negotiation, preparation, execution and delivery of this
Agreement (including, without limitation, all such out-of-pocket costs
(including legal fees), charges and expenses in connection with matters
relating to the Second Short-Term Note and Second Short-Term Note Letter
Agreement) and the documents and instruments referred to herein, and otherwise
reviewed in connection herewith and therewith.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their duly authorized officers, all as of the date and year
first above written.
WORLDPORT INTERNATIONAL, INC.
By:
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Name:
Title:
WORLDPORT COMMUNICATIONS, INC.
By:
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Name:
Title:
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BANKERS TRUST COMPANY
as Agent and Collateral Agent
By:
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Name:
Title:
BANKERS TRUST CORPORATION
as Lender
By:
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Name:
Title:
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DREYFUS PREMIER LIMITED TERM HIGH
INCOME FUND
By:
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Name:
Title:
