Exhibit 10.13
EQUITY CONTRIBUTION AGREEMENT
EQUITY CONTRIBUTION AGREEMENT (this "AGREEMENT"), dated as of October 8,
1999, among FLAG ATLANTIC LIMITED, a limited company duly organized and validly
existing under the laws of Bermuda (the "COMPANY"), FLAG ATLANTIC HOLDINGS
LIMITED, a limited company duly organized and validly existing under the laws of
Bermuda (the "EQUITY CONTRIBUTOR") and BARCLAYS BANK PLC, as administrative
agent (together with its successors in such capacity, the "ADMINISTRATIVE
AGENT") for the Secured Parties.
WITNESSETH
WHEREAS, the Company will borrow certain credit facilities pursuant to that
certain Credit Agreement dated October 8, 1999 between the Company, the
Administrative Agent, the Lead Arranger and the Lenders listed therein (as
amended, restated, supplemented or otherwise modified, the "Credit Agreement"),
the proceeds of which will be used to finance Project Costs;
WHEREAS, the Equity Contributor currently owns a 50% equity interest in the
Company;
WHEREAS, it is a condition precedent to the obligations of the Lenders to
make the Loans under the Credit Agreement that the Equity Contributor, the
Company and the Administrative Agent enter into this Agreement;
WHEREAS, the Equity Contributor has agreed to deliver, in support of its
obligations hereunder, on or before the Closing Date, an Equity Letter of Credit
(as defined below) issued by (i) Bank of America or (ii) a financial institution
rated at least "A" by S&P and "A2" by Xxxxx'x ("LOC ISSUER");
WHEREAS, the Company has assigned all of its right, title and
interest under this Agreement, including, without limitation, its right to
receive the Equity Contributions pursuant to the terms hereof, to the
Administrative Agent for the benefit of the Secured Parties pursuant to the
Company Security Agreement (U.S.); and
WHEREAS, the Equity Contributor and the Company shall derive
substantial benefit from the Loans pursuant to the Credit Agreement.
NOW THEREFORE, in consideration of the premises and the
covenants and agreements as hereinafter set forth, each of the parties hereto
hereby agrees as follows:
ARTICLE I. DEFINITIONS
Section 1.1. INCORPORATED TERMS. Each capitalized term used
herein and not defined herein shall have the meaning ascribed to such term in
the Credit Agreement (regardless of whether such agreement shall have been
terminated or otherwise not be in full force and effect).
Section 1.2. DEFINITIONS. As used herein, the following terms shall have
the meanings herein specified unless the context otherwise requires.
"EQUITY CONTRIBUTION" shall mean a cash capital contribution or any other
cash payment to the Company required to be made by the Equity Contributor to the
Company in accordance with Section 2.1 of this Agreement.
"EQUITY CONTRIBUTION COMMITMENT" shall mean the difference
between U.S.$100,000,000 and the sum of (i) amounts paid by the Equity
Contributor under the Limited Guarantee (FLAG) entered into by the Equity
Contributor and (ii) the amounts paid under this Agreement (including, without
limitation, amounts paid or deemed to be paid under subsection 2.1(d) of this
Agreement.)
"EQUITY LETTER OF CREDIT" shall mean an irrevocable letter of credit issued
by an LOC Issuer, naming the Administrative Agent as beneficiary, which (a)
shall be in the form of EXHIBIT A hereto and (b) have a face amount equal to the
initial Equity Contribution Commitment.
"EVENT OF BANKRUPTCY" shall mean, with respect to any Person: (i) such
Person shall apply for, or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of such Person or a
substantial part of its property, (ii) such Person makes a general assignment
for the benefit of its creditors, (iii) such Person is adjudicated bankrupt or
insolvent, (iv) the commencement by such Person of a voluntary case under any
applicable bankruptcy laws (as now or hereafter in effect), (v) the filing by
such Person of a petition seeking to take advantage of any other law relating to
bankruptcy, liquidation, insolvency, reorganization, winding-up, or composition
or readjustment of debts, judicial or extrajudicial, or seeking to take
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advantage of any applicable insolvency law relating to such Person, (vi) such
Person shall file any answer admitting the material allegations of a petition
filed against it in any bankruptcy, reorganization or insolvency proceeding,
(vii) such Person shall fail to controvert or oppose in a timely and appropriate
manner, or shall acquiesce in writing to, any petition filed against it in an
involuntary case under any bankruptcy law or (viii) such Person shall have any
petition filed against it in an involuntary case under any bankruptcy law and
such involuntary case remains undismissed for 60 days .
"RATING CRITERIA" shall mean, with respect to an LOC Issuer, a
rating of at least "A" by S&P and "A2" by Xxxxx'x.
Section 1.3. RULES OF CONSTRUCTION. (a) Defined terms in this Agreement
shall include in the singular number the plural and in the plural number the
singular.
(b) The words "HEREOF," "HEREIN" and "HEREUNDER" and words of
similar import when used in this Agreement shall, unless otherwise expressly
specified, refer to this Agreement as a whole and not to any particular
provision of this Agreement and all references to Sections shall be references
to Sections of this Agreement unless otherwise expressly specified.
(c) Any agreement, contract or document defined or referred to herein shall
be deemed to refer to such agreement, contract or document, all schedules and
exhibits thereto and all amendments or modifications thereto permitted pursuant
to the terms hereof and the other Financing Documents.
ARTICLE II. EQUITY CONTRIBUTION OBLIGATIONS
2.1. EQUITY CONTRIBUTIONS. The Equity Contributor shall make its Equity
Contribution to the Company in accordance with the following terms and
conditions:
(a) Prior to the expiry of the Equity Letter of Credit (including, without
limitation, pursuant to the service of a termination notice in accordance with
the terms of the Equity Letter of Credit), the Equity Contributor agrees to make
the Equity Contribution to fund Project Costs or to repay Construction Loans,
subject to and in accordance with the terms hereof no later than October 31,
2000. On capital call from the Company, in amounts and on dates to be specified
in each call, the Equity Contributor shall make Equity Contributions to the
Company in an aggregate amount equal to the Equity Contribution Commitment.
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(b) Upon an Event of Default and subsequent acceleration under the Credit
Agreement, the obligation of the Equity Contributor to pay the Equity Contribu
tion Commitment shall be accelerated and, upon notice from the Administrative
Agent, the Equity Contributor shall immediately pay such amounts of the Equity
Contribution Commitment which, subject to the provisions of Section 4.7 of this
Agreement, is equal to not more than half of the amount necessary to repay and
discharge all Obligations.
If, pursuant to a termination notice served under the Equity Letter of
Credit, notice is served to terminate the Equity Letter of Credit prior to
its expiry date then the Administrative Agent shall be entitled on notice to
require the Equity Contributor to immediately pay the full amount of the
Equity Contribution Commitment; provided, however, that upon the provision by
the Equity Contributor of written notice to the Administrative Agent no later
than 30 days prior to the expiry date under the Equity Letter of Credit the
Equity Contributor shall be entitled to (i) extend the expiry date under the
Equity Letter of Credit to no later than six months after October 31, 2000,
or to rollover such letter of credit, in each case in accordance with the
terms of the Equity Letter of Credit and (ii) procure the issue of a
replacement Letter of Credit by an LOC Issuer satisfying the Rating Criteria
in an amount equal to the Equity Contribution Commitment and on terms
substantially identical to the Equity Letter of Credit but having an expiry
date falling at least six months after October 31, 2000 under the Equity
Letter of Credit, and the Administrative Agent shall not be entitled to serve
notice on the Equity Contributor to pay the full amount of the Equity
Contribution Commitment except to the extent that any amount is otherwise
payable under the Equity Letter of Credit, this Agreement or otherwise, in
each case in accordance with the terms thereof.
(c) Notwithstanding anything to the contrary herein, in no
event shall the aggregate amount of all Equity Contributions made by or on
behalf of the Equity Contributor plus drawings under and amounts available to be
drawn under the Equity Letter of Credit and any amounts paid pursuant to the
Limited Guarantee Agreement (FLAG) exceed $100,000,000.
(d) Each Equity Contribution directly or indirectly made by or on behalf of
the Equity Contributor (including any such payment by means of a drawing under
the Equity Letter of Credit or pursuant to the Limited Guarantee Agreement
(FLAG) ) shall constitute a capital contribution to the common equity of the
Company pursuant to Section 2.1(a) hereof.
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(e) Subject to and in accordance with the terms of this Agreement, each of
the Company, the Equity Contributor and the Administrative Agent agrees that it
shall not amend or alter in any way, or permit any amendment or alteration to be
made to, the amount of any Equity Contribution to be made or the date or dates
upon which such Equity Contribution is to be made as such amount and dates are
set out in Section 2.1(a) of this Agreement without the prior written consent of
the Person holding the second priority pledge, as previously disclosed to the
Administrative Agent.
(f) The Administrative Agent shall promptly upon receipt of
amounts under the Equity Contribution in the Equity Proceeds Account provide to
the LOC Issuer a certificate evidencing receipt of such amounts that have not
been drawn under the Equity Letter of Credit.
Section 2.2. CREDIT SUPPORT DOCUMENTS. (a) On or before the Closing Date,
the Equity Contributor shall deliver to the Administrative Agent an Equity
Letter of Credit issued by the LOC Issuer in support of its obligations under
Section 2.1 of this Agreement.
(b) In the event that the Equity Contributor shall fail to make its Equity
Contribution when due in accordance with Section 2.1 of this Agreement, the
Administrative Agent may promptly make a demand for payment under the Equity
Letter of Credit in the amount of the Equity Contribution required to be paid by
the Equity Contributor under Section 2.1 hereof; PROVIDED, THAT the
Administrative Agent's failure to make such demand for payment under the Equity
Letter of Credit shall not relieve the Equity Contributor of its obligations
under this Agreement. Any payment made directly to the Administrative Agent
under the Equity Letter of Credit shall be deemed to be an Equity Contribution
under Section 2.1 and shall satisfy the obligation of the Equity Contributor to
the Company hereunder to the extent of such payment.
(c) Any payment made directly to the Administrative Agent
under the Limited Guarantee Agreement (FLAG), shall satisfy the obligation of
the Equity Contributor to the Company hereunder to the extent of such payment.
Section 2.3. PAYMENTS. The Equity Contributor agrees to make all payments
required to be made by it hereunder in United States Dollars and immediately
available funds directly to the Administrative Agent for the benefit of the
Company, and such amounts shall be applied as provided in the Credit Agreement.
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ARTICLE III. WAIVERS
Section 3.1. OBLIGATIONS ABSOLUTE. The obligation of the Equity Contributor
to make Equity Contributions in accordance with Section 2.1 is absolute,
irrevocable and unconditional and shall be unaffected by:
(i) any lack of validity or enforceability of any obligations
under any Financing Document or any Project Document;
(ii) the existence of any claim, setoff, defense or other right
which the Equity Contributor may have against the Company, the Contractor
or any of its Affiliates or any other Person;
(iii) any failure by the Equity Contributor to perform its
obligations under this Agreement or any release (whether by operation of
law or otherwise) of the Company from its obligations under this Agreement
or of the Company and the Equity Contributor from its obligations under any
Financing Document or any Project Document;
(iv) the occurrence of an Event of Bankruptcy with respect to
the Company or any other Person and the occurrence of any other
proceeding as a result of such Event of Bankruptcy;
(v) any amendment, supplement or other modification of any
Project Document or any Financing Document (including, without limitation,
any increase in the amounts payable in respect of any or all of the
obligations under any Financing Document or any extension of the time of
payment, observance or performance, or any other amendment, supplement or
modification of any of the other terms and provisions relating to the
obligations under any Financing Document);
(vi) the existence of any condition that adversely affects the
Loans or the ability of the Company to use the Loans for the purposes
contemplated by any Financing Document or the Project Documents;
(vii) the exercise by the Company, the Administrative Agent, the
Contractor or any of its Affiliates or any Secured Party of any of their
rights and remedies under the Project Documents or the Financing Documents;
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(viii) any delay or failure by the Company, the Administrative
Agent or any Secured Party in the exercise of their rights and remedies
under this Agreement, the Financing Documents or any Project Document;
(ix) any breach or default by any Person in the performance or
observance of any of its obligations under this Agreement or any Financing
Document or the Project Document to which it is a party;
(x) the existence, value or condition of, or failure to
perfect its Lien against, any security for the obligations under the
Financing Documents or any action, or the absence of any action by the
Administrative Agent or any other Secured Party in respect thereof
(including, without limitation, the release of any such security); and
(xi) any other circumstance, condition or event that might
constitute or give rise to a defense to performance by the Equity
Contributor of its obligations under this Agreement (other than the defense
of performance in full of its obligations hereunder).
Section 3.2. WAIVER. In addition to the waivers contained in Section 3.1:
(i) The Equity Contributor waives, and agrees that it shall not
at any time insist upon, plead or in any manner whatever claim or take the
benefit or advantage of, any appraisal, valuation, stay, extension,
marshalling of assets or redemption laws, or exemption, whether now or at
any time hereafter in force, which may delay, prevent or otherwise affect
the performance by the Equity Contributor of its obligations under, or the
enforcement by the Company of, this Agreement.
(ii) The Equity Contributor waives any rights and defenses, if
any, that it may have under, and agrees that it shall not at any time claim
or attempt to take the benefit or advantage of, Section 365(c)(2) of the
Bankruptcy Code or any other similar law in any jurisdiction.
(iii) The Equity Contributor hereby waives all notices,
diligence, presentment and demand with respect to any of the events
referred to in
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Section 3.1 of this Agreement, and waives the benefit of all Laws which
are or might be in conflict with the terms of this Agreement.
(iv) The Equity Contributor represents, warrants and agrees
that, as of the date of this Agreement, its obligations under this
Agreement are not subject to any offsets or defenses of any kind against
the Administrative Agent, the Contractor or any of its Affiliates, any
Secured Party or the Company. The Equity Contributor further agrees that
its obligations under this Agreement shall not be subject to any
counterclaims, offsets or defenses against the Administrative Agent, the
Contractor or any of its Affiliates, any Secured Party or the Company of
any kind which may arise in the future.
(v) The Equity Contributor hereby irrevocably waives, to the
extent it may do so under applicable Laws, any defense based on the
adequacy of a remedy at law which may be asserted as a bar to the remedy of
specific performance in any action brought by the Administra tive Agent,
any other Secured Party or the Company against the Equity Contributor for
specific performance of the terms of this Agreement.
Section 3.3. REINSTATEMENT .Notwithstanding anything to the
contrary provided for in Section 4.1, this Agreement shall continue to be
effective or be reinstated, as the case may be, if at any time any amount
received by the Company or the Administrative Agent pursuant to this Agreement
is rescinded or must otherwise be restored or returned by the Company or the
Administrative Agent to the Equity Contributor or any trustee, custodian or
similar official for the Equity Contributor upon the occurrence of an Event of
Bankruptcy with respect to the Equity Contributor, or upon the appointment of
any intervenor or conservator of, or trustee, custodian or similar official for,
the Equity Contributor or any part of the assets of the Equity Contributor or
otherwise, all as though such payments had not been made.
ARTICLE IV. MISCELLANEOUS
Section 4.1. TERMINATION. Except as otherwise provided for
herein, this Agreement shall terminate on the date on which the Equity
Contributor, or anyone on its behalf, shall have satisfied its obligation under
Section 2.1 to make its Equity Contribution.
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Section 4.2. NOTICES. All notices and other communications hereunder shall
be in writing, shall be sent by first class mail, by personal delivery, by a
nationally recognized courier service, or by telecopy and shall be directed to
the addresses and telephone or telecopy numbers listed on Schedule I hereto or
to such other address or addressee as a party may designate by notice given
pursuant hereto.
Section 4.3. EXPENSES. The Equity Contributor agrees to pay on
demand to the Company or any Secured Party, as applicable, all reasonable costs
and expenses of collection (including, without limitation, the reasonable fees
and disbursements of counsel) incident to the enforcement or preservation of any
right or claim under this Agreement against the Equity Contributor.
Section 4.4. DOLLAR TRANSACTION. This is an international financing
transaction in which the specification of Dollars and payment in New York, New
York is of the essence, and Dollars shall be the currency of account and of
payment in all events. The payment obligations of the Equity Contributor
hereunder shall not be discharged by an amount paid in another currency or in
another place, whether pursuant to a judgment or otherwise, to the extent that
the amount so paid on prompt conversion into Dollars and transfer to New York,
New York under normal banking procedures does not yield the amount of Dollars in
New York, New York due hereunder. In the event that any payment, whether
pursuant to a judgment or otherwise, upon such conversion and transfer does not
result in payment of such amount of Dollars in New York, New York, the
Administrative Agent or the Company, as the case may be, shall be entitled to
demand immediate payment of, and shall, to the fullest extent permitted by law,
have a separate cause of action for, such Dollar deficiency.
Section 4.5. SEPARATE COUNTERPARTS; AMENDMENTS; WAIVER. This Agreement may
be executed in separate counterparts, each of which when so executed and
delivered shall be an original but all such counterparts shall constitute one
and the same instrument. Neither this Agreement nor any of the terms hereof may
be amended, supplemented, waived or otherwise modified except by an instrument
in writing signed by the Administrative Agent and the party against whom any
such waiver, amendment, supplement, or other modification is to be enforced.
Section 4.6. NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the
part of the Company or the Administrative Agent in exercising any right, power
or privilege hereunder and no course of dealing between the Company and any
other party hereto shall operate as a waiver thereof; nor shall any single or
partial exercise of any
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right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder.
Section 4.7. PARALLEL ACTION .On the date hereof, GTS TransAtlantic
Holdings, the owner of a 50% equity interest in the Company ("GTS SPONSOR"),
has entered into an Equity Contribution Agreement dated the date hereof with
provisions corresponding to the provisions hereof for an equity contribution
to be made by GTS Sponsor. In the event that GTS Sponsor is in default of its
obligations under its Equity Contribution Agreement and the Equity
Contributor is in default of its obligations under this Agreement, then the
Administrative Agent agrees that it will act in parallel to initiate remedies
available under the respective Equity Contribution Agreements whether such
initiative is by demand, drawing upon the Equity Letter of Credit (and the
letter of credit provided by the LOC Issuer of GTS Sponsor) or exercise of
remedies of enforcement available pursuant to the respective Equity
Contribution Agreements. Except as expressly provided for herein, this
undertaking shall in no respect diminish or delay the exercise by the
Administrative Agent of all rights available pursuant to the Equity Letter of
Credit, the Letter of Credit provided by the LOC Issuer of GTS Sponsor and
the respective Equity Contribution Agreements. Notwithstanding anything to
the contrary provided for in Section 2.1 and Section 4.9 of this Agreement,
in the event that the exercise of rights by the Administrative Agent under
either Equity Contribution Agreement should be delayed, deferred, enjoined or
for any other reason whatsoever the Administrative Agent is unable to
exercise in full or realize in full its rights and obligations under either
Equity Contribution Agreement, the Administrative Agent may proceed in the
exercise of its remedies under the other Equity Contribution Agreement to the
fullest extent permitted by law. It is expressly acknowledged by the
Administrative Agent that the Equity Contribution Agreement entered into by
GTS Sponsor (as defined in Section 4.7) has a provision corresponding to this
provision.
Section 4.8. SUBSTANTIAL SIMILARITY. It is confirmed by the
Company and the Administrative Agent that GTS Transatlantic Holdings ("GTS
SPONSOR") has entered into an Equity Contribution Agreement (the "GTS EQUITY
CONTRIBUTION AGREEMENT") on substantially the same terms as the terms of this
Agreement.
Section 4.9. CALLS AND DEMANDS. It is agreed that the Company
and the Administrative Agent will to the extent that equal amounts are due under
each such agreements, make parallel calls and demands under this Agreement and
the GTS Equity Contribution Agreement (and if required under any supporting
Letter of Credits) at the same time and for the same amounts and (without
prejudice to section 4.7) will use all
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reasonable endeavors to enforce such calls and demands with a view to treating
the Equity Contributor and the GTS Sponsor on an equal footing.
Section 4.10. SEVERABILITY OF PROVISIONS. 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.
Section 4.11. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
each party hereto, and on their permitted successors and assigns, and shall
inure to the benefit of the Company and its successors and assigns; PROVIDED,
HOWEVER, that neither the Company nor the Equity Contributor shall transfer or
assign all or any portion of its obligations under this Agreement without the
prior written consent of the other and the Administrative Agent. The Equity
Contributor hereby consents to the collateral assignment of this Agreement by
the Company to the Administrative Agent for the benefit of the Secured Parties
pursuant to the Company Security Agreement (U.S.) or otherwise, and the Equity
Contributor hereby agrees that (i) pursuant to the exercise of remedies under
any of the Financing Documents the Administrative Agent or its designee or
transferee may succeed to the rights, powers, privileges, interests and remedies
of the Company, whether arising under this Agreement or by statute or in law or
in equity or otherwise and (ii) the Administrative Agent either as party to or
third party beneficiary of this Agreement shall have the right to enforce
directly the provisions hereof against each of the parties hereto. The Equity
Contributor shall be fully protected in making payments to the Administrative
Agent hereunder, such payments shall fully discharge the Equity Contributor's
obligations to the Company or any other Person hereunder and under no
circumstances may the Equity Contributor be required to make Equity
Contributions hereunder that exceed, together with all amounts available to be
drawn under the Equity Letter of Credit and Limited Guarantee Agreement (FLAG),
the Equity Contribution Commitment.
Section 4.12. HEADINGS DESCRIPTIVE. The headings of the several sections of
this Agreement are inserted for convenience only and shall not in any way affect
the meaning or construction of any provisions of this Agreement.
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Section 4.13. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGA TIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE
OF NEW YORK (WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO
CONFLICTS OF LAW EXCEPT SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND
ANY ACTION FOR ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF MAY BE BROUGHT
IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR
THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH OF THE COMPANY, THE ADMINISTRATIVE AGENT AND THE EQUITY
CONTRIBUTOR HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE NON-EXCLU SIVE JURISDICTION OF THE
AFORESAID COURTS AND APPELLATE COURTS FROM ANY THEREOF. EACH OF THE COMPANY
AND THE EQUITY CONTRIBUTOR HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND
EMPOWERS FLAG TELECOM USA LIMITED WITH OFFICES AT 000 XXXXXXXXX XXXXXX, 00XX
XXXXX, XXX XXXX, XX 00000, AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE,
ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY,
SERVICE OF ANY AND ALL LEGAL PROCESS, SUM MONS, NOTICES AND DOCUMENTS WHICH
MAY BE SERVED IN ANY ACTION OR PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE,
APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, THE COMPANY
OR THE EQUITY CONTRIBUTOR, AS APPLICABLE, AGREES TO DESIGNATE A NEW DESIGNEE,
APPOINTEE AND AGENT IN NEW YORK CITY ON THE TERMS AND FOR THE PURPOSES OF
THIS PROVISION SATISFACTORY TO THE ADMINISTRATIVE AGENT. THE COMPANY, THE
ADMINISTRATIVE AGENT AND THE EQUITY CONTRIBUTOR IRREVOCABLY CONSENT TO THE
SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION
OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE
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PREPAID, TO THE COMPANY, THE ADMINISTRATIVE AGENT AND THE EQUITY CONTRIBUTOR
AT ITS ADDRESS REFERRED TO IN SECTION 4.2. EACH OF THE COMPANY, THE
ADMINISTRATIVE AGENT AND THE EQUITY CONTRIB UTOR HEREBY IRREVOCABLY WAIVES
ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF
ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT BROUGHT IN THE COURTS REFERRED TO ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PARTY
HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED IN ANY OTHER JURISDICTION.
(c) EACH OF THE COMPANY, THE EQUITY CONTRIBUTOR AND THE ADMINISTRATIVE
AGENT HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY MATTER ARISING HEREUNDER.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
Responsible Officers to execute and deliver this Agreement as of the date first
above written.
FLAG ATLANTIC LIMITED
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Attorney-in-Fact
By: /s/ Xxxxxx XxXxxxxxx
----------------------------
Name: Xxxxxx XxXxxxxxx
Title: Attorney-in-Fact
FLAG ATLANTIC HOLDINGS LIMITED
By: /s/ Xxxxxx XxXxxxxxx
------------------------------
Name: Xxxxxx XxXxxxxxx
Title:
BARCLAYS BANK PLC
as Administrative Agent,
By: /s/ L. Xxxxx Xxxxxx
-----------------------------
Name: L. Xxxxx Xxxxxx
Title: Director
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