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EXHIBIT 10.10(a)
CONSENT AND AMENDMENT
CONSENT AND AMENDMENT, dated as of October 19, 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, the Parent and the Existing Dutch Holding Company (as defined
below) are parties to the Minority Shareholder Agreement (as defined in the
Credit Agreement), pursuant to which the Minority Shareholders originally
agreed, subject to the terms and provisions set forth therein, to purchase 20%
of the equity of WorldPort Communications (Europe), B.V., a Netherlands
corporation (the "Existing Dutch Holding Company");
WHEREAS, the Existing Dutch Holding Company currently owns all of the
issued and outstanding shares (the "Enertel Shares") of EnerTel, N.V., a
Netherlands corporation ("Enertel");
WHEREAS, one of the Minority Shareholders has requested, and has been
granted, a release from its obligation to consummate its purchase of 5% of the
equity of the Existing Dutch Holding Company;
WHEREAS, the Minority Shareholders desire that the Minority
Shareholder Investment (as defined below) be made in a newly formed holding
company to be organized in the Netherlands ("Newco") which, at the time of the
Minority Shareholder Investment, shall own the
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Enertel Shares and an intercompany note owed by Enertel to it (the "Enertel
Note") and certain contract rights related to the ownership of the Enertel
Shares and, as its sole liabilities two intercompany notes (the "Holding
Company Notes") owed to the Company and obligations under the Finance
Documents;
WHEREAS, the remaining Minority Shareholders, the Company, Newco and
Enertel desire to execute and deliver the "Shareholders Agreement" (the
"Shareholders Agreement") referred to in the Minority Shareholder Agreement,
the execution and delivery of which is a condition to the purchase by such
other Minority Shareholders of 15% of the equity of Newco (the purchase of such
15%, the "Minority Shareholder Investment");
WHEREAS, in order to facilitate the Minority Shareholder Investment,
the Parent and the Company have requested the Administrative Agent and Lenders
to consent to (i) the formation of Newco, (ii) the transfer of the Enertel
Shares and Enertel Note to Newco, (iii) an assumption by Newco of the Holding
Company Notes owed to the Company, (iv) the execution and delivery by Newco
and/or the Company, as applicable, of the documents pledging the Enertel
Shares, the Enertel Note and the Holding Company Notes to the Collateral Agent
(the transactions referred to in subclauses (i) through (iv), the "Enertel
Transfer Transaction"), (v) the making of the Minority Shareholders Investment
into Newco rather than the Existing Dutch Holding Company (the "Newco
Investment") and (vi) a portion of the proceeds of the Minority Investment
being distributed to the Parent, subject to the terms and provisions set forth
herein;
WHEREAS, the transfer of title of the Newco Shares to the Minority
Shareholders pursuant to the Minority Shareholder Investment is, as set forth
in the Shareholders Agreement and Minority Shareholder Agreement, subject to
certain Dutch regulatory requirements (the "Required Regulatory Approvals");
WHEREAS, pending the receipt of the Required Regulatory Approvals, the
funds to be paid by the Minority Shareholders for the Minority Shareholder
Investment are to be paid, simultaneously with the execution and delivery of
the Shareholders Agreement, pursuant to the escrow arrangement set forth in the
Payment and Transfer Agreement by and between the Company, the Minority
Shareholders party thereto and the other parties thereto, in the form attached
as Exhibit 1 hereto (the "Escrow Agreement"), which funds are to be released to
Newco and the Company upon receipt of Required Regulatory Approval pursuant to
the terms and conditions set forth in the Escrow Agreement;
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WHEREAS, the Parent and the Company have requested that the
Administrative Agent and Lenders, in accordance with the terms of the Credit
Agreement, consent to the Enertel Transfer Transaction and the Newco
Investment, 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. Subject to Section 3 of this Agreement:
A. The Administrative Agent and the Lenders hereby
grant their consent to the Enertel Transfer Transaction subject to the terms
and conditions hereof.
B. The Administrative Agent and the Lenders hereby
grant their consent to the Company's and Newco's execution of the Shareholders
Agreement in the form attached hereto as Exhibit 2 (the "Shareholder
Agreement") and to the Newco Investment (in accordance with the terms and
provisions of the Minority Shareholder Agreement and Shareholder Agreement).
C. The Administrative Agent and the Lenders grant their
consent to the execution by the Newco of the Loan Agreement with the Minority
Shareholders in the form attached hereto as Exhibit 3 (the "Minority
Shareholder Loan Agreement").
3. Conditions Precedent. The foregoing consents under Sections
3(A), 3(B) and 3(C) of this Agreement are subject to satisfaction of the
following conditions precedent:
A. Execution and delivery by the Existing Dutch Holding
Company, the Company and Newco of appropriate Transfers of Contract (the
"Transfers of Contract"), in each case in form and substance satisfactory to
the Administrative Agent and Collateral Agent in order to consummate the
Enertel Transfer Transaction and cause, among other things, the Enertel Shares,
the Holding Company Notes and the Enertel Note to be pledged to the Collateral
Agent for the benefit of the Lenders;
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B. Execution and delivery by (i) the Company of a
Pledge Agreement (the "New Dutch Pledge Agreement"), in form and substance
satisfactory to the Administrative Agent and Collateral Agent, pledging all of
the shares of Newco to the Collateral Agent, (ii) the Company of a Pledge of
Loan Receivables Agreement, in form and substance satisfactory to the
Administrative Agent and Collateral Agent (the "New Company Pledge of Loan
Receivables Agreement") and (iii) Newco of a Pledge of Loan Receivables
Agreement, in form and substance satisfactory to the Administrative Agent and
Collateral Agent (together with the New Company Pledge of Loan Receivables
Agreement, collectively the "New Pledge of Receivables Agreements"; the New
Dutch Pledge Agreement and the New Pledge of Receivables Agreements, together
with the documents described in (A) above, collectively, the "New Finance
Documents");
C. An opinion of DeBrauw Blackstone Westbroek, Dutch
counsel to the Company and Newco and XxXxxxxxx, Will & Xxxxx, special counsel
to the Company in each case covering such matters as may be requested and
otherwise in form and substance satisfactory to the Administrative Agent and
Collateral Agent.
D. Evidence satisfactory to the Collateral Agent that
the Holding Company Notes of the Existing Dutch Holding Company shall have been
assumed (pursuant to the Transfer of Contract in form and substance
satisfactory to the Administrative Agent) by Newco, which note shall have been
pledged to the Collateral Agent under the New Finance Documents.
E. An executed amendment to the articles of association
of Newco (the "Newco Amendment") to permit the transfer of voting rights in its
shares, in form and substance satisfactory to the Administrative Agent, shall
have been filed with and approved by the Ministry of Justice in the Netherlands
and executed and shall be in full force and effect.
F. All corporate matters, including the articles and
other governance documents, resolutions approving the Enertel Transfer
Transaction, shareholders meetings (if any) shall be effective and be in form
and substance satisfactory to the Administrative Agent and the Administrative
Agent shall have received a copy of the articles of association of Newco, as
amended certified as of a recent date by the relevant Dutch civil notary (the
"Newco Articles").
G. The Administrative Agent shall be reasonably
satisfied that Newco and the Company have complied with, and will continue to
comply with, all Requirements of Law in connection with their respective
execution, delivery and performance of the New Finance
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Documents and the transactions contemplated thereby and the consummation of the
Enertel Transfer Transaction.
H. As of the date of the Enertel Transfer Transaction
and Newco Investment, (x) no action, suit, litigation, proceeding,
investigation, inquiry or dispute by or before any court, Governmental
Authority or any arbitrator shall be pending against or affecting (i) Newco or
the Enertel Transfer Transaction or the Minority Shareholder Investment or
threatened against or affecting, Newco, the Enertel Transfer Transaction or the
Minority Shareholder Investment which could reasonably be expected to have a
Material Adverse Effect (other than Required Regulatory Approvals relating to
the Minority Shareholders Investment) or (ii) the New Finance Documents or any
of the transactions contemplated thereby and (y) there shall not have been any
Requirement of Law (other than Required Regulatory Approvals relating to the
Minority Shareholders Investment) or injunction applicable to the Enertel
Transfer Transaction or the New Finance Documents or any of the transactions
contemplated thereby which have been enacted, promulgated, entered or enforced
by any Governmental Authority, nor shall there be pending any action or
proceeding before any such Governmental Authority which is reasonably likely
to, in each case, prohibit, restrict, delay or otherwise materially affect the
Enertel Transfer Transaction or the Minority Shareholder Investment.
I. The Administrative Agent shall have received
certified copies of the Shareholders Agreement, with all Exhibits and
attachments thereto, all of which are in form and substance satisfactory to the
Administrative Agent.
J. The Administrative Agent shall have received
evidence that all consents and filings necessary for any of the transactions
contemplated by the New Finance Documents and their validity and/or
enforceability have been obtained or made and are in full force and effect.
K. The Administrative Agent shall have received all
shares of stock in the Company's shareholding in the collateral pledged under
the New Finance Documents and stock transfer forms in respect of the same
executed in blank on behalf of such Person, as the case may be (except for the
number and class of shares and the name of the transferor) and left undated.
L. The representations and warranties of the Company
and the Parent set forth in paragraph 5 of this Agreement and those contained
in the New Finance Documents shall
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be true and correct on such date both before and after giving effect to the
consummation of the Enertel Transfer Transaction.
M. All necessary governmental (domestic and foreign),
regulatory and third party approvals and/or consents in connection with the
Enertel Transfer Transaction and the other transactions contemplated by this
Agreement and the New Finance Documents and otherwise referred to herein or
therein shall have been obtained and remain in effect, and all applicable
waiting periods shall have expired without any action being taken by any
competent authority which restrains or prevents such transactions or imposes,
in the reasonable judgment of the Administrative Agent, materially adverse
conditions upon the consummation of such transactions. Any applicable law
regulating the Enertel Transfer Transaction shall have been complied with or
shall have been reasonably determined by the Administrative Agent to be invalid
or inapplicable to the Enertel Transfer Transaction.
N. Concurrently with the effectiveness of this
Agreement, the Minority Shareholders shall have entered into the Shareholders
Agreement and shall have funded the proceeds of the purchase price and the
loans contemplated by the Escrow Agreement in respect of the Minority
Shareholder Investment to the Notary referred to in the Escrow Agreement to be
held in escrow pursuant to the Escrow Agreement.
O. The Minority Shareholders, the Company and the New
Dutch Holding Company shall have executed and delivered to the Agent the Letter
Agreement in the form attached as Exhibit 4 hereto.
4. Amendments. Effective on the Effective Date (as
herein defined):
A. The parties hereto agree that,
simultaneously with the consummation of the Enertel Transfer
Transaction, all references in the Credit Agreement (including those
incorporated therein pursuant to this Agreement) to the Dutch Holding
Company shall mean and refer to Newco, and all references to the Dutch
Pledge Agreement and the Pledge of Receivables Agreements shall
include (but not be limited to) the New Dutch Pledge Agreements and
the New Pledge of Receivables Agreements, respectively, and all
references to Finance Documents shall include the New Finance
Documents and Transfer of Contracts.
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B. The following definitions are
added to Section 1.01 of the Credit Agreement in their appropriate
alphabetical order:
"Consent and Amendment" means that Consent and
Amendment to this Agreement, dated as of October 19, 1998,
among the Company, the Parent, the Lenders party thereto, the
Administrative Agent and the Collateral Agent.
"Escrow Agreement" shall mean the Payment and
Transfer Agreement dated October 20, 1998, among the Company,
the Minority Shareholders party thereto and the other parties
thereto, in the form attached as Exhibit 1 to the Consent and
Amendment.
"Escrowed Proceeds" shall mean the aggregate
proceeds representing the purchase price for the purchase of
at least 15% of the equity of the Dutch Holding Company and
the Minority Shareholders Loans in an aggregate amount of
27,920,000 Dutch Guilders, in each case which have been
deposited with the Notary referred to in the Escrow
Agreement.
"Minority Shareholder Investment" shall mean the
purchase by the Minority Shareholders of equity in the Dutch
Holding Company on terms and provisions set forth in the
Minority Shareholder Agreement and Shareholders Agreement
(except that only an amount equal to 15% of the equity of the
Dutch Holding Company is to be so purchased).
"Minority Shareholder Loans" shall mean the loans
made to the Dutch Holding Company by the Minority
Shareholders in accordance with the provisions of the
Shareholder Agreement, Minority Shareholder Agreement and
Shareholder Loan Agreement.
"Shareholder Agreement" means the Shareholders
Agreement attached as Exhibit 2 to the Consent and Amendment.
"Shareholder Loan Agreement" means the Loan
Agreement, dated October 20, 1998, by and between the
Company, the Dutch Holding Company and the Minority
Shareholders party thereto.
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"Substitute Minority Investment" shall have the
meaning specified in Section 5.16(c).
C. Section 5 of the Credit Agreement
is amended by adding new Sections 5.15 and 5.16 after Section 5.14,
which new Sections shall read as follows:
Section 5.15 Additional Reporting Requirements.
In addition to the requirements of Section 5.12, the Parent
and the Company will deliver to the Administrative Agent by
Monday of each week, (i) a cash report of the Parent and the
Company and each of its operating Subsidiaries (including,
without limitation, EnerTel), which report shall detail
actual receipts and disbursements of cash of the Parent, the
Borrower and each of its operating Subsidiaries (including,
without limitation, EnerTel) for the immediately prior week
and a budget and forecast for such members of the Group for
each of the next four (4) weeks, all prepared in detail
satisfactory to the Administrative Agent and (ii) a current
aging of payables of the Parent, the Company and each of its
operating subsidiaries (including, without limitation,
EnerTel), in detail reasonably satisfactory to the
Administrative Agent.
Section 5.16 Cash Infusions. (a) The Parent and
the Company covenant and agree that (i) no later than October
20, 1998, they shall have arranged for, and received (or
other members of the Group acceptable to the Administrative
Agent shall have received) the cash proceeds of a cash
infusion in an aggregate amount of not less than $500,000,
and (ii) no later than October 23, 1998, they shall have
arranged for, and received (or other members of the Group
acceptable to the Administrative Agent shall have received),
the cash proceeds of an amount, in addition to that received
pursuant to subclause (i) of this Section 5.16(a), of not
less than $700,000, in each case in form and, substance and
upon terms and conditions, and from Persons, reasonably
satisfactory to the Administrative Agreement.
(b) The Parent and the Company covenant and agree that
(i) no later than October 23, 1998, they shall have entered
into commitments from Persons reasonably acceptable to the
Administrative Agent to provide a cash infusion to the Group
in an aggregate amount which, when added with the amount of
proceeds received pursuant to Section 5.16(a), equal not less
than $4,500,000,
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provided that the form, substance, terms and provisions
thereof shall be reasonably satisfactory to the
Administrative Agent and (ii) no later than November 9, 1998,
they (or other members of the Group acceptable to the
Administrative Agent) shall have received the full amount of
the proceeds committed pursuant to the commitments referred
to in subclause (i) of this Section 5.16(b) in cash in
respect thereof, the form, substance, terms and provisions of
such infusion to be reasonably satisfactory to the
Administrative Agent.
(c) The Parent and the Company covenant and agree that,
no later than December 3, 1998, either (i) they shall have
received (or other members of the Group reasonably acceptable
to the Administrative Agent shall have received) an aggregate
amount which, when added to the amount of cash proceeds
received pursuant to Sections 5.16(a) and 5.16(b), shall
equal not less than $14,500,000, provided that, (A) in the
event such proceeds constitute loans, the form, substance,
terms and conditions of such loans shall be exactly the same
(including the provision of "drag-along" rights in favor of
the Administrative Agent and Collateral Agent as provided in
the Letter Agreement referred to in Section 3(O) of the
Consent and Amendment), as determined by the Administrative
Agent, as the terms of the Minority Shareholder Loans,
provided that such Person providing such proceeds shall be
reasonably acceptable to the Administrative Agent and the
Minority Shareholders shall have released the Company, the
Dutch Holding Company and Enertel from all obligations under
the Minority Shareholder Agreement, the Shareholder Agreement
and all other documents and agreements relating to the
Minority Shareholder Investment (and the Administrative Agent
and Collateral Agent shall thereafter have no obligations to
the Minority Shareholders), with the effect that none of the
Minority Shareholders will be entitled to purchase any equity
in the Dutch Holding Company or Enertel (such transaction
referred to in this subclause (i)(A), the "Substitute
Minority Investment"), or (B) if such proceeds constitute
proceeds of equity issuances, the form, substance, terms and
conditions of which shall be reasonably satisfactory to the
Administrative Agent or (ii) the Dutch Holding Company and
the Company shall have received the aggregate amount of all
of the Escrowed Proceeds, which proceeds shall have been
contributed simultaneously with the receipt thereof in
accordance with the provisions of Section 6.22.
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(d) The Parent and Company covenant and agree that, no
later than December 19, 1998 (i) they will have received cash
proceeds from issuances of equity by the Parent to Persons
reasonably acceptable to the Administrative Agent in an
aggregate amount which, when added to the amount of proceeds
received pursuant to Sections 5.16(a), 5.16(b) and 5.16(c)(i)
(but in any event excluding any amount of Escrowed Proceeds
and any amount constituting the proceeds of the Substitute
Minority Investment), equals an amount not less than
$40,000,000, the form, substance, terms and conditions of
which issuances shall be reasonably satisfactory to the
Administrative Agent, (ii) they will have received an amount
of capital from Persons reasonably acceptable to the
Administrative Agent, in addition to that required by
subclause (i) of this Section 5.16(d) (but in any event
excluding any amount of Escrowed Proceeds and any amount
constituting the proceeds of the Substitute Minority
Investment), in an amount not less than $20,000,000, the
form, substance, terms and conditions of which shall be
reasonably satisfactory to the Administrative Agent, and
(iii) either (A) the aggregate amount of all of the Escrowed
Proceeds shall have been received by the Dutch Holding
Company and the Company (which proceeds shall have been
contributed simultaneously with the receipt thereof in
accordance with the provisions of Section 6.22) or the
aggregate amount of the proceeds of the Substitute Minority
Investment shall have been made (which proceeds shall have
been contributed simultaneously with the receipt thereof in
accordance with Section 6.22), or (B) they will have received
additional cash proceeds from issuances of equity by the
Parent, to Persons reasonably acceptable to the
Administrative Agent, in addition to the amounts required by
Sections 5.16(d)(i) and 5.16(d)(ii) in an amount not less
than $14,500,000, the form, substance, terms and conditions
of which shall be reasonably satisfactory to the
Administrative Agent.
D. Section 6.21(b) of the Credit
Agreement is amended by adding the phrase "the Escrow Agreement, the
Shareholder Loan Agreement, the Shareholders Agreement" after the
phrase "Finance Document" appearing therein.
E. The Credit Agreement is amended by
adding a new Section 6.22 and 6.23 thereto immediately following
Section 6.21, which new sections shall read as follows:
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Section 6.22. Proceeds of Minority Shareholders
Investment:
Notwithstanding anything to the contrary set forth
in the Credit Agreement or any other Finance Document, (i)
the Company agrees that it shall contribute the proceeds
received or which it is entitled to in respect of the
Minority Shareholder Investment (including the Escrowed
Proceeds) promptly upon release of the Escrowed Proceeds to
the Dutch Holding Company, and cause the Dutch Holding
Company to promptly contribute such proceeds to Enertel, and
shall cause the Dutch Holding Company to promptly contribute
the proceeds which the Dutch Holding Company receives or is
entitled to receive in respect of the Minority Shareholder
Loans, or the proceeds of the Substitute Minority Investment,
as the case may be, to EnerTel and (ii) the Parent and the
Company agree that they will not, and will ensure that none
of their Subsidiaries will, distribute or disburse (whether
by dividend, advance, loan, contribution or otherwise) any of
the proceeds received in respect of the Minority Shareholder
Investment (including the Minority Shareholder Loans) or the
proceeds of the Substitute Minority Investment to the Parent
or any of its Subsidiaries, provided that (A) the Company and
the Dutch Holding Company may make the distributions
contemplated by subclause (i) of this Section 6.22, (B) the
proceeds of the Minority Shareholder Loans and the proceeds
of the Substitute Minority Investment, as the case may be,
may be distributed to Enertel and (C) provided no Default or
Event of Default has occurred and is continuing or would
result therefrom, an aggregate amount not in excess of 35% of
the amounts received pursuant to Section 5.16(c) may be
distributed to the Parent. Notwithstanding the foregoing, the
proceeds received from the infusions pursuant to Sections
5.16(a) and 5.16(b) may be retained by the Parent or
distributed to the Parent.
Section 6.23. Escrowed Proceeds. In addition to
the terms and provisions of Section 6.5, the Parent and
Company will not, and will not permit any of their
Subsidiaries to create, incur, assume or suffer to exist any
Lien upon or with respect to the Escrowed Proceeds, the
account in which such Escrowed Proceeds are held or otherwise
on any of their rights to the Escrowed Proceeds.
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F. Section 7.1(b) of the Credit
Agreement is amended by deleting the phrase "2.15, 5.13(a), 5.15 or
Article VI" therefrom and substituting the phrase "2.15, 5.12(a),
5.14, 5.15, 5.16 or Article VI" therefor.
G. Section 7.1 of the Credit Agreement
is hereby amended by adding new Sections 7.1(p), 7.1(q) and 7.1(r)
immediately following Section 7.1(o) which shall read as follows:
"(p) Release of Escrowed Proceeds; Regulatory
Approval Requirements.
(i) If any Required Governmental Approval (as defined in
the Consent and Amendment) by the Dutch Government required
for the consummation of the Minority Shareholder Investment
for a purchase of equity in the Dutch Holding Company
contemplated by the Shareholders Agreement is denied by the
applicable Dutch Governmental Authority or if the applicable
Dutch Governmental Authority indicates its intention to deny
such Governmental Approval; or
(ii) If all applications and filings necessary for the
approval of the applicable Dutch Governmental Authorities
required under Dutch law for the purchase by the Minority
Shareholders of 15% of the equity in the Dutch Holding
Company as contemplated by the Shareholders Agreement are not
made by October 23, 1998; or
(iii) If all Governmental Approvals by the Dutch
Government required for the consummation of the Minority
Shareholder Investment are not received by, and applicable
licenses (if any) in connection with such purchase are not
obtained by, in each case, December 19, 1998.
7.1(q) Action on Minority Shareholder Pledge. If
for any reason any of the Minority Shareholders exercises any
of their respective rights or remedies in respect of any of
the shares of
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EnerTel which have been pledged to the Minority Shareholders
in connection with the Shareholder Loans.
7.1(r) Minority Shareholder Investment. If for any
reason the Minority Shareholder Investment is rescinded.
5. The Company and the Parent hereby represent and
warrant that (i) that neither the Company, the Parent nor any of their
Subsidiaries have created, incurred, assumed or have suffered to exist any Lien
upon or with respect to the Escrowed Proceeds, the account in which such
Escrowed Proceeds are held or otherwise on any of their rights to the Escrowed
Proceeds and (ii) the representations and warranties set forth in Sections
4.1(a), (b), (c), (d), (e), (f), (r), (x) and (aa) of the Credit Agreement
(after giving effect to the provisions hereof) shall be true and correct in all
material respects as of the date of the Enertel Transfer Transaction and Newco
Investment as if made on such date .
6. Applicable Law; Submission to Jurisdiction. THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
7. 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.
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8. 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.
9. 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.
10. 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
Administrative Agent, the Collateral Agent, the Majority Lenders and the other
Loan Parties which are a party hereto have been received by the Administrative
Agent.
11. 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 Administrative Agent pay all reasonable
out-of-pocket costs (including legal fees), charges and expenses of the
Administrative 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 Minority Shareholder
Investment, the EnerTel Transaction and the formation of Newco) 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:
16
BANKERS TRUST COMPANY
as Administrative Agent and Collateral Agent
by
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Name:
Title:
BANKERS TRUST CORPORATION
as Lender
by
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Name:
Title:
17
DREYFUS PREMIER LIMITED TERM HIGH
INCOME FUND
by
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Name:
Title:
