Exhibit 10.14
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"),GTS TRANSATLANTIC HOLDINGS,
LTD., 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 (GTS) 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 any expiry 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
Contribution 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.
(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 (GTS) 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 (GTS) ) shall constitute a capital contribution to the common equity
of the Company pursuant to Section 2.1(a) hereof.
(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.
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(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 (GTS), 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.
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;
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(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;
(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
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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 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
Administrative
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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.
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
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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 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, FLAG Atlantic Holdings
Limited, the owner of a 50% equity interest in the Company ("FLAG 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 FLAG Sponsor. In the event that FLAG 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 FLAG 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 FLAG Sponsor and the respective Equity Contribution
Agreements.
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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 FLAG 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 FLAG Atlantic Holdings Limited ("FLAG
SPONSOR") has entered into an Equity Contribution Agreement (the "FLAG 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
FLAG 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 reasonable endeavors to enforce such calls and demands
with a view to treating the Equity Contributor and the FLAG 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;
provided, however, that the Equity Contributor may assign all of its obligations
under this Agreement to any Subsidiary of Global Telesystems Group, Inc. without
the prior written consent of any other party to the
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Agreement; provided, further however, that prior written notice of such
assignment is provided to the Administrative Agent by the Equity Contributor.
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 Administra tive 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 (GTS),
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.
Section 4.13. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS 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
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COMPANY, THE ADMINISTRATIVE AGENT AND THE EQUITY CONTRIB UTOR HEREBY ACCEPTS
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
NON-EXCLUSIVE 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 NATIONAL CORPORATE RESEARCH
WITH OFFICES AT 000 XXXX 00XX XXXXXX, XXXXX 0000, 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, SUMMONS, 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 PROVI SION SATISFACTORY
TO THE ADMINISTRATIVE AGENT. THE COM PANY, 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 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 CONTRIBUTOR 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.
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(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 XxXxxxxxx
------------------------
Name: Xxxxxx XxXxxxxxx
Title: Attorney-in-Fact
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Attorney-in-Fact
GTS TRANSATLANTIC HOLDINGS, LTD.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title:
BARCLAYS BANK PLC
as Administrative Agent,
By: /s/ L. Xxxxx Xxxxxx
--------------------------
Name: L. Xxxxx Xxxxxx
Title: Director
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