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EXHIBIT 10.5
CONSENT AND AMENDMENT XX. 0
XXXXXXX XXX XXXXXXXXX XX. 0, dated as of August 18, 1999 (this
"Agreement"), by and among WORLDPORT INTERNATIONAL, INC., a Delaware corporation
(the "Company"), WORLDPORT COMMUNICATIONS, INC., a Delaware corporation (the
"Parent"), the other Loan Parties listed on the signature pages hereto, the
Lenders (as defined in the Credit Agreement) which are a party hereto and
BANKERS TRUST COMPANY, as Administrative Agent (in such capacity, the
"Administrative Agent") and Collateral Agent (in such capacity, the "Collateral
Agent") and as joint creditor with the other Lenders under the Credit Agreement,
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 amended, modified, supplemented and as in effect,
the "Credit Agreement") with the Lenders, the Administrative Agent and the
Collateral Agent;
WHEREAS, pursuant to the Credit Agreement, the Lenders made certain
term loans to the Company in the aggregate principal amount of $120,000,000, as
evidenced by the Term Notes (as defined in the Credit Agreement);
WHEREAS, the Term Notes were originally scheduled to mature on June 23,
1999 (the "Maturity Date");
WHEREAS, the Administrative Agent and the Lenders have heretofore
agreed to extend the Maturity Date until August 18, 1999; and
WHEREAS, the Company and the Parent have requested that, subject to the
terms and provisions hereof, the Maturity Date be extended to November 18, 1999.
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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. Amendments. Effective on the Effective Date (as herein
defined):
A. The following definitions are hereby added to Section
1.1 of the Credit Agreement in their appropriate alphabetical order:
"1999 Permitted Asset Sale" shall mean the sale, conveyance or
other transfer of those certain assets comprising the customer care
center owned by the Parent and located in Nebraska and California for
aggregate consideration consisting of cash in an amount not less than
$500,000 and other consideration consisting of forgiveness of certain
severance payments owing to the purchasers by the Parent and
termination of certain stock options held by such purchasers.
"Amendment Fee" shall mean that certain fee payable in
connection with Amendment No. 9, which fee shall be in the amounts and
shall be due and payable at the times in accordance with the provisions
of Section 4 thereof.
"Amendment No. 9" means Consent and Amendment No. 9 to this
Agreement, dated as of August 18, 1999, by and among the Company, the
Parent, the other Loan Parties listed on the signature pages thereto,
the Lenders party thereto, the Administrative Agent and the Collateral
Agent.
"Early Termination Event" shall mean the date on which any of
the following has occurred:
(i) a determination by the Administrative Agent
and the Lenders in their sole discretion that satisfactory progress is
not being made by the Company and the Parent in arranging for a
refinancing of all of the Obligations; or
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(ii) a determination by the Administrative Agent
and the Lenders in their sole discretion that satisfactory progress has
not been made by the Company and the Parent toward consummating a
transaction pursuant to which a bona fide entity (as determined by the
Administrative Agent and the Lenders) will purchase either the Parent
or specified assets, including, without limitation, the Parent's
Subsidiaries or assets thereof, in an amount, net of taxes to be paid
or payable in connection therewith and transaction costs, equal to or
in excess of all Obligations (after giving effect to all third party
obligations which also must be paid in connection with such sale); or
(iii) a determination by the Administrative Agent
and the Lenders in their sole discretion that the Parent and the
Company do not and are not likely to have sufficient liquidity to fund
the operations of the Parent, the Company and their respective
Subsidiaries through any period reasonably determined by the
Administrative Agent and the Lenders to be sufficient time to
consummate a transaction yielding proceeds sufficient to repay the
Obligations in full, taking into account the sources and uses of funds
of the Parent, Company and such Subsidiaries from the Effective Date
(as defined in Amendment No. 9) through such period.
The Administrative Agent and the Lenders shall be entitled to make any
of the determinations set forth above based on the circumstances
(including without limitation, market conditions) they deem appropriate
at the time of such determination.
B. The definition of "Asset Sale" set forth in Section
1.1 of the Credit Agreement is hereby amended by adding the following to the
end thereof:
"; provided further, however, that the immediately preceding
proviso shall not, following the consummation of the 1999
Permitted Asset Sale, apply for the 1999 fiscal year."
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C. The definition of "Maturity Date" set forth in
Section 1.1 of the Credit Agreement is hereby restated in its entirety to read
as follows:
"Maturity Date" shall mean the first to occur of (a) November
18, 1999 and (b) an Early Termination Event.
D. Section 2.8(a)(i) of the Credit Agreement is hereby
amended by restating it its entirety the last sentence thereof to read as
follows:
"Notwithstanding the foregoing provisions of this Section
2.8(a)(i), (A) the consummation of the Initial Heico Investment, the
consummation of the Second Heico Investment, if any, the consummation
of the Total Equity Investment, the consummation of the Additional
Equity Investment, if any, the consummation of the July 1999
Investment, if any, and the consummation of the Optional Investment, if
any, shall not constitute an Asset Sale for purposes of this Section
2.8(a)(i) and (B) Net Cash Proceeds not exceeding $600,000 resulting
from the 1999 Permitted Asset Sale shall not be subject to the
prepayment provision set forth herein."
E. Section 7.1 of the Credit Agreement is hereby amended
by adding the following new Section 7.1(s) immediately following Section 7.1(r),
which new Section shall read as follows:
"7.1(s) Early Termination Event. The occurrence of an Early
Termination Event."
3. Conditions to Effectiveness. The effectiveness of this
Agreement (such date of effectiveness, the "Effective Date") is subject to the
satisfaction of the following conditions precedent:
a) Execution of this Agreement. Each of the Parent, the
Company, the other Loan Parties, the Administrative Agent, the Collateral Agent
and the Lenders shall have executed and delivered this Agreement.
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b) Officer's Certificates/Board Resolutions. The
Administrative Agent shall have received a certificate of the Secretary or
Assistant Secretary of the Company and the Parent dated the Effective Date and
certifying that attached thereto is a true and correct copy of the resolutions
duly adopted by the Board of Directors of the Parent and the Company authorizing
the execution, delivery and performance of this Agreement and the transactions
contemplated hereby (including, without limitation, payment of the Amendment
Fee), and that such resolutions have not been modified, rescinded or amended and
are in full force and effect.
c) Representations and Warranties. The representations
and warranties of the Parent set forth in Section 5 of this Agreement shall be
true and correct in all material respects on the Effective Date.
d) Payment of Certain Fees and Expenses. The receipt by
the Administrative Agent of $250,000 from the Parent and/or Company to be
applied to outstanding fees and expenses of the Administrative Agent and the
Lenders in connection with the Finance Documents.
4. Amendment Fee. In consideration of the agreements of the
Lenders set forth herein, the Parent and Company, jointly and severally, agree
to pay to the Administrative Agent, for the pro rata benefit of the Lenders (and
the Lenders' respective participants), a fee (the "Amendment Fee") in the amount
of $600,000, which Amendment Fee shall be earned on the Effective Date and shall
be immediately due and payable on the Maturity Date. Each of the Parent and the
Company hereby acknowledges that the Amendment Fee shall constitute an
Obligation and, if not paid when due, shall accrue interest at the Default Rate.
5. Representations and Warranties. Each of the Parent, Company
and each other Loan Party hereby represents and warrants to the Administrative
Agent and the Lenders that (i) this Agreement constitutes the legal, valid and
binding obligation of the Parent, Company and such Loan Party, enforceable
against the Parent, Company and such Loan Party in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws now or hereinafter in effect affecting the
enforcement of creditors' rights generally and by general principles of equity
(regardless of whether enforcement is sought
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in a proceeding in equity or at law) and (ii) all corporate action on the part
of the Parent, Company and such Loan Party, its respective directors and
shareholders necessary for the authorization, execution, delivery and
performance by the Parent, Company and such Loan Party of this Agreement, and
the consummation of the transactions contemplated thereby, has been taken.
6. Confirmation of Guarantees, Security Documents. Each of the
Parent and Company and each of the other Loan Parties party hereto hereby
acknowledges, ratifies and confirms that, (a) pursuant to the Parent Guaranty
and the Subsidiary Guaranty to which it is a party, such Loan Party guarantees
all obligations of the Parent and Company under this Agreement in respect of the
Amendment Fee (such obligations being hereinafter referred to as the "Guaranteed
Obligations"), (b) each of the Guaranteed Obligations shall constitute
Guaranteed Obligations under and as defined in each Guaranty, (c) each of the
Guarantees and Security Documents to which it is a party is and shall continue
to be in full force and effect in accordance with its terms and the Liens
granted thereunder shall secure and shall continue to secure the Obligations and
the Secured Obligations (as such terms are defined in the Security Documents)
including, the Guaranteed Obligations; and (d) the Liens granted to the
Collateral Agent for its benefit and the benefit of the Lenders pursuant to the
Security Documents to which it is a party are and shall continue to be, valid
and perfected Liens in the Collateral covered thereby and the Obligations and
Secured Obligations as defined in the Security Documents shall be deemed to
include the Amendment Fee and all other obligations and each of the Company, the
Parent and each other Loan Party hereby confirms and regrants a Lien on all of
the Collateral under each Security Document to which such Grantor is a party to
the Collateral Agent, as security for the full payment of the Secured
Obligations (as defined in each such Security Document).
7. Applicable Law; Submission to Jurisdiction. THIS AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK.
8. 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
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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.
9. 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.
10. 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.
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 Agent pay all reasonable out-of-pocket costs (including legal
fees), charges and expenses of the 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 this Agreement, and the
documents and instruments referred to herein, and otherwise reviewed in
connection herewith and therewith).
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12. 1999 Permitted Asset Sale. The Administrative Agent and
Lenders hereby consent to the 1999 Permitted Asset Sale (as defined in the
Credit Agreement after giving effect to this Agreement).
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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 COMMUNICATIONS, INC.
By:
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Name:
Title:
WORLDPORT INTERNATIONAL, INC.
By:
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Name:
Title:
TELENATIONAL COMMUNICATIONS, INC.
By:
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Name:
Title:
IIC ACQUISITION CORP.
By:
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Name:
Title:
WORLDPORT/ICX, INC.
By:
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Name:
Title:
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WORLDPORT ACQUISITIONS, INC.
By:
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Name:
Title:
WORLDPORT ACQUISITION CORP.
By:
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Name:
Title:
WORLDPORT COMMUNICATIONS (EUROPE), B.V.
By:
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Name:
Title:
WORLDPORT COMMUNICATIONS EUROPE
HOLDING, B.V.
By:
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Name:
Title:
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:
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DREYFUS PREMIER LIMITED TERM HIGH INCOME FUND
By:
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Name:
Title:
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ACKNOWLEDGED AND AGREED TO:
CIBC XXXXXXXXXXX CORP.,
as Participant
By:
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Name:
Title:
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ACKNOWLEDGED AND AGREED TO:
Continental Casualty Company,
as Participant
By:
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Name:
Title:
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ACKNOWLEDGED AND AGREED TO:
Northstar High Total Return Fund,
as Participant
By:
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Name:
Title:
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ACKNOWLEDGED AND AGREED TO:
Northstar High Total Return Fund II,
as Participant
By:
---------------------------------
Name:
Title:
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ACKNOWLEDGED AND AGREED TO:
UNITED Bank OF SWITZERLAND, London Branch,
as Participant
By:
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Name:
Title:
By:
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Name:
Title:
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