GST TELECOMMUNICATIONS, INC.
GST USA, INC.
GST EQUIPMENT FUNDING, INC.
PLACEMENT AGREEMENT
May 8, 1997
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
for itself and the other Placement
Agents named below
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
GST Equipment Funding, Inc., a Delaware corporation ("GST
Funding"), proposes to issue and sell to the several Placement Agents named in
Schedule I hereto (the "Placement Agents") $265,000,000 principal amount of GST
Funding's 13 1/4% Senior Secured Notes Due 2007 (the "Notes") to be issued
pursuant to the provisions of an Indenture dated as of May 13, 1997 (the
"Indenture") among GST Funding, GST Telecommunications, Inc., a federally
chartered Canadian corporation ("GST"), GST USA, Inc., a Delaware corporation
("GST USA"), and United States Trust Company of New York, as trustee (the
"Trustee"). GST Funding will use all of the net proceeds from the offering of
the Notes to purchase U.S. Government Securities (the "Pledged Securities") and
pledge the Pledged Securities to the Trustee for the benefit of the holders of
the Notes pursuant to the provisions of a Collateral Pledge and Security
Agreement, dated as of the date of the Indenture (the "Pledge Agreement"), made
by GST Funding in favor of the Trustee. On the Closing Date (as defined below),
GST Funding will use a portion of the net proceeds from the offering of the
Notes to purchase Pledged Securities to fund the first six scheduled interest
payments on the Notes. GST Funding will use the remaining net proceeds of the
offering of the Notes to purchase Pledged Securities which will be sold from
time to time to acquire funds to pay the Acquired Equipment Cost in respect of
Acquired Equipment or to refinance on the Closing Date up to $50 million of
indebtedness of GST USA and its subsidiaries secured by Acquired Equipment (as
such terms are defined in the Pledge Agreement). All Acquired Equipment will be
subject to a first priority security interest in favor of the Trustee for the
benefit of holders of the Notes. From time to time after the purchase of
Acquired Equipment, such Acquired Equipment will be sold by GST Funding to
GST USA in exchange for Intercompany Notes (as defined in the Pledge Agreement)
from GST USA. Each Intercompany Note will be guaranteed by GST (the "Note
Guarantee"), will be secured by a security interest in the Acquired Equipment
purchased with such Intercompany Note and will be pledged to the Trustee for the
benefit of holders of the Notes. On May 13, 2000, or earlier if permitted by the
terms of GST USA's and GST's outstanding indebtedness, GST USA will assume and
become the direct obligor on the Notes and GST will guarantee the Notes.
GST Funding, GST and GST USA understand that the Notes will be
offered without being registered under the Securities Act of 1933, as amended
(the "Securities Act"), to qualified institutional buyers in compliance with the
exemption from registration provided by Rule 144A under the Securities Act, in
offshore transactions in reliance on Regulation S under the Securities Act
("Regulation S") and to institutional accredited investors (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) that deliver a letter in
the form annexed to the Final Memorandum (as defined below).
The Placement Agents and their direct and indirect transferees
will be entitled to the benefits of a Registration Rights Agreement, to be dated
the Closing Date and to be substantially in the form attached hereto as Exhibit
A.
In connection with the sale of the Notes, GST Funding and GST
have prepared a preliminary private placement memorandum (the "Preliminary
Memorandum") and will prepare a final private placement memorandum (the "Final
Memorandum" and, with the Preliminary Memorandum, each a "Memorandum") setting
forth or including a description of the terms of the Notes, the terms of the
offering and a description of each of GST Funding, GST and GST USA and their
business.
1. REPRESENTATIONS AND WARRANTIES. (i) Each of GST Funding,
GST and GST USA jointly and severally represents and warrants to, and agrees
with, each of the Placement Agents that as of the date hereof:
(a) The Preliminary Memorandum does not contain, and the Final
Memorandum in the form used by the Placement Agents to confirm sales and on the
Closing Date will not contain, any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this Section 1(i)(a) do not apply to
statements or omissions in either Memorandum based upon information relating to
any Placement Agent furnished to GST Funding or GST in writing by such Placement
Agent through you expressly for use therein.
(b) GST Funding has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State of
Delaware, has the corporate
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power and authority to own or lease its property and to conduct its business as
described in each Memorandum and is duly qualified or licensed to transact
business and is in good standing as a foreign corporation in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
requires such qualification or licensing, except to the extent that the failure
to be so qualified or licensed or be in good standing would not have a material
adverse effect on GST and its subsidiaries, taken as a whole.
(c) GST has been duly incorporated under the laws of Canada,
is validly existing as a corporation in good standing with respect to all
filings of annual returns required to be made under the laws of Canada, has the
corporate power and authority to own or lease its property and to conduct its
business as described in each Memorandum and is duly qualified or licensed to
transact business and is in good standing as a foreign corporation in each
jurisdiction in which the conduct of its business or its ownership or leasing of
property requires such qualification or licensing, except to the extent that the
failure to be so qualified or licensed or be in good standing would not have a
material adverse effect on GST and its subsidiaries, taken as a whole.
(d) GST USA has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own or lease its property and to conduct its
business as described in each Memorandum and is duly qualified or licensed to
transact business and is in good standing as a foreign corporation in each
jurisdiction in which the conduct of its business or its ownership or leasing of
property requires such qualification or licensing, except to the extent that the
failure to be so qualified or licensed or be in good standing would not have a
material adverse effect on GST and its subsidiaries, taken as a whole.
(e) Each subsidiary of GST and GST USA listed on Schedule II
hereto (each a "Specified Subsidiary", and together the "Specified
Subsidiaries") has been duly incorporated, is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own or lease property and to conduct its
business as described in each Memorandum and is duly qualified or licensed to
transact business and is in good standing as a foreign corporation in each
jurisdiction in which the conduct of its business or its ownership or leasing of
property requires such qualification or licensing, except to the extent that the
failure to be so qualified or licensed or be in good standing would not have a
material adverse effect on GST and its subsidiaries, taken as a whole. The only
direct subsidiaries of GST are GST USA, GST Call America, Inc. ("Call America")
and TotalNet Communications, Inc. ("TotalNet") and GST owns all of the
outstanding capital stock of such subsidiaries, free and clear of any claims,
liens, pledges or other encumbrance. GST USA owns all of the outstanding capital
stock of GST Funding, free and clear of any claims, liens, pledges or other
encumbrance. The total assets and revenues of GST's direct and indirect
subsidiaries other than the Specified Subsidiaries, in the aggregate, comprised
less than 5% of GST's total consolidated assets and
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revenues, respectively, at and for the year ended September 30, 1996 and at and
for the quarter ended March 31, 1997.
(f) This Agreement has been duly authorized, executed and
delivered by each of GST Funding, GST and GST USA.
(g) The Notes have been duly authorized and, when executed,
authenticated and delivered to and paid for by the Placement Agents in
accordance with the terms of the Indenture and this Agreement, will be (i) valid
and binding obligations of GST Funding enforceable against GST Funding in
accordance with their terms, except as (A) the enforceability thereof may be
limited by the effect of applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and (B) rights
of acceleration, if applicable, and the availability of equitable remedies may
be limited by equitable principles of general applicability and (ii) entitled to
the benefits of the Indenture.
(h) Each of the Indenture and the Registration Rights
Agreement has been duly authorized, executed and delivered by, and is a valid
and binding agreement of, each of GST Funding, GST and GST USA, enforceable in
accordance with its terms, except as (i) the enforceability thereof may be
limited by the effect of applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and (ii) rights
of acceleration, if applicable, and the availability of equitable remedies may
be limited by equitable principles of general applicability.
(i) The Pledge Agreement has been duly authorized, executed
and delivered by, and is a valid and binding agreement of, GST Funding,
enforceable in accordance with its terms, except as (i) the enforceability
thereof may be limited by the effect of applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
and (ii) the availability of equitable remedies may be limited by equitable
principles of general applicability.
(j) The execution and delivery by each of GST Funding, GST and
GST USA of, and the performance by each of GST Funding, GST and GST USA of its
obligations under, this Agreement (including the issuance, sale and delivery of
the Notes), the Indenture, the Registration Rights Agreement and the Notes to
which it is a party will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of any of GST Funding, GST or GST USA or
any agreement or other instrument binding upon GST Funding, GST or GST USA that
is material to GST and its subsidiaries taken as a whole, or any judgment, order
or decree of any governmental body, agency or court having jurisdiction over GST
Funding, GST or GST USA and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by any of GST Funding, GST or GST USA of its obligations under this
Agreement (including the issuance, sale and delivery of the Notes), the
Indenture, the
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Registration Rights Agreement or the Notes to which it is a party, except such
as may be required by the securities laws or Blue Sky laws of the various states
in connection with the offer and sale of the Notes or by the federal and state
securities laws in connection with the registration obligations under the
Registration Rights Agreement.
(k) The execution and delivery by GST Funding of, and the
performance by GST Funding of its obligations under, the Pledge Agreement will
not contravene any provision of applicable law or the certificate of
incorporation or by-laws of GST Funding or any agreement or other instrument
binding upon GST Funding or GST USA that is material to GST and its
subsidiaries, taken as whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over GST Funding or GST
USA, and no consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by GST Funding
of its obligations under the Pledge Agreement.
(l) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of GST and
its subsidiaries, taken as a whole, from that set forth in the Preliminary
Memorandum.
(m) There are no legal or governmental proceedings pending or,
to the best of GST Funding's, GST's or GST USA's knowledge, threatened to which
GST Funding, GST, GST USA or any of the Specified Subsidiaries is a party or to
which any of the properties of GST Funding, GST, GST USA or any of the Specified
Subsidiaries is subject other than proceedings accurately described in all
material respects in each Memorandum and proceedings that would not have a
material adverse effect on GST and its subsidiaries, taken as a whole, or on the
power or ability of any of GST Funding, GST or GST USA to perform its
obligations under this Agreement, the Indenture, the Registration Rights
Agreement, the Notes or the Pledge Agreement to which it is a party or to
consummate the transactions contemplated by the Final Memorandum.
(n) None of GST Funding, GST or GST USA or any affiliate (as
defined in Rule 501(b) of Regulation D under the Securities Act, an "Affiliate")
of GST Funding, GST or GST USA has directly or through any agent (i) sold,
offered for sale, solicited offers to buy or otherwise negotiated in respect of,
any security (as defined in the Securities Act) which is or will be integrated
with the sale of the Notes in a manner that would require the registration under
the Securities Act of the Notes or (ii) engaged in any form of general
solicitation or general advertising in connection with the offering (as such
terms are used in Regulation D under the Securities Act) of the Notes or in any
manner involving a public offering within the meaning of Section 4(2) of the
Securities Act.
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(o) None of GST Funding, GST or GST USA is an "investment
company" or an entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended.
(p) It is not necessary in connection with the offer, sale and
delivery of the Notes to the Placement Agents in the manner contemplated by this
Agreement and each Memorandum to register the Notes under the Securities Act or
to qualify the Indenture under the Trust Indenture Act of 1939, as amended.
(q) GST Funding, GST, GST USA and the Specified Subsidiaries
have all necessary permits, licenses, authorizations, consents and approvals and
have made all necessary filings required under any federal, state, local or
foreign supranational, national or regional law, regulation or rule, and have
obtained all necessary authorizations, consents and approvals from other
persons, material to the conduct of their respective businesses, in each case
except to the extent that the failure to obtain such permits, licenses,
authorizations, consents or approvals or to make such filings would not, singly
or in the aggregate, have a material adverse effect on the properties, assets,
prospects, condition, financial or otherwise, business or operations of GST and
its subsidiaries, taken as a whole; except as accurately described in all
material respects in each Memorandum, GST Funding, GST, GST USA and their
subsidiaries have not received any notice of proceedings which remain unresolved
relating to the revocation or modification of any such permits, licenses,
authorizations, consents or approvals, nor is GST Funding, GST, GST USA or any
of the Specified Subsidiaries in violation of, or in default under, any such
license, authorization, consent or approval or any federal, state, local or
foreign supranational, national or regional law, regulation or rule or any
decree, order or judgment applicable to GST Funding, GST, GST USA or any of the
Specified Subsidiaries the effect of which could have a material adverse effect
on the properties, assets, prospects, condition, financial or otherwise,
business or operations of GST and its subsidiaries, taken as a whole.
(r) GST Funding, GST, GST USA and the Specified Subsidiaries
(i) are in compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes, pollutants
or contaminants ("Environmental Laws"), (ii) have received all permits, licenses
or other approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) are in compliance with all terms
and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, individually or in the
aggregate, have a material adverse effect on GST and its subsidiaries, taken as
a whole.
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(s) Each of GST Funding, GST and GST USA has complied with all
provisions of Section 517.075, Florida Statutes (Chapter 92-198, Laws of
Florida).
(t) None of GST Funding, GST, GST USA, their Affiliates or any
person acting on its or their behalf (other than the Placement Agents) has
engaged in any directed selling efforts (as such term is defined in Regulation
S) with respect to the Notes and GST Funding, GST, GST USA, their Affiliates and
any person acting on its or their behalf (other than the Placement Agents) have
complied with the offering restrictions requirement of Regulation S.
(u) The terms of the Notes and the Indenture conform in all
material respects to the description thereof contained in the Final Memorandum
under the heading "Description of the Notes."
(v) The financial statements contained in each Memorandum
comply with the requirements of Regulation S-X of the Securities and Exchange
Commission.
(w) Upon delivery to the Trustee of the certificates or
instruments, if any, representing the Pledged Securities (as defined in the
Final Memorandum) and the filing of financing statements, if any, required by
the Uniform Commercial Code in the appropriate offices in the State of New York,
the pledge of and grant of a security interest in the Pledged Securities for the
benefit of the Trustee and the holders of the Notes will constitute a first
priority security interest in the Pledged Securities, enforceable as against all
creditors of GST Funding (and any persons purporting to purchase any of the
Pledged Securities from GST Funding).
(x) The $35 million principal amount Promissory Note, dated
the Closing Date, made by GST USA for the benefit of GST Funding (the "Initial
Note") has been duly authorized, executed and delivered by, and is a valid and
binding agreement of, GST USA, enforceable in accordance with its terms, except
as (i) the enforceability thereof may be limited by the effect of applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and (ii) rights of acceleration, if applicable, and
the availability of equitable remedies may be limited by equitable principles of
general applicability.
(y) The Promissory Note, dated the Closing Date, made by GST
USA for the benefit of GST Funding (the "Initial Intercompany Note") to
refinance certain intercompany indebtedness on the Closing Date has been duly
authorized, executed and delivered by, and is a valid and binding agreement of,
GST USA, enforceable in accordance with its terms, except as (i) the
enforceability thereof may be limited by the effect of applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
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creditors' rights generally and (ii) rights of acceleration, if applicable, and
the availability of equitable remedies may be limited by equitable principles of
general applicability.
(z) The Intercompany Security Agreement, dated as of the
Closing Date, made by GST USA for the benefit of GST Funding (the "Intercompany
Security Agreement") has been duly authorized, executed and delivered by, and is
a valid and binding agreement of, GST USA, enforceable in accordance with its
terms, except as (i) the enforceability thereof may be limited by the effect of
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and (ii) the availability of equitable
remedies may be limited by equitable principles of general applicability.
(aa) Each of the Guaranty, dated the Closing Date, made by GST
for the benefit of GST Funding with respect to the Initial Note (the "Initial
Note Guaranty") and the Guaranty, dated the Closing Date, made by GST for with
benefit of GST Funding with respect to the Initial Intercompany Note (the
"Intercompany Note Guaranty") has been duly authorized, executed and delivered
by, and is a valid and binding agreement of, GST, enforceable in accordance with
its terms, except as (i) the enforceability thereof may be limited by the effect
of applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and (ii) the availability of equitable
remedies may be limited by equitable principles of general applicability.
(bb) Schedule A to the Certificate of Responsible Officer
dated May 13, 1997 signed by ▇▇▇▇ ▇▇▇▇▇ and delivered in connection with the
opinion of ▇▇▇▇▇▇▇ & Berlin delivered pursuant to Section 4(c) hereof lists all
of the telecommunications services provided by the Specified Subsidiaries (other
than NACT Telecommunications, Inc. and Wasatch International Network Services,
Inc.), other than services which are not, singly or in the aggregate, material
to GST and its subsidiaries, taken as a whole.
(ii) Each of the Placement Agents represents and warrants to,
and agrees with, GST Funding, GST, GST USA and each of the Specified
Subsidiaries that as of the date hereof:
(a) each of the Placement Agents has the necessary power and
authority to enter into this Agreement and to consummate the
transactions contemplated hereby.
(b) each of the Placement Agents will deliver to each
purchaser, prior to any submission by such person of a written offer
relating to the purchase of Notes, a copy of the Final Memorandum.
2. OFFERING. Each of the Placement Agents has advised GST
Funding, GST and GST USA that it will make an offering of the Notes purchased by
it hereunder on
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the terms set forth in the Final Memorandum as soon as practicable after this
Agreement is entered into as in its judgment is advisable.
3. PURCHASE AND DELIVERY. GST Funding hereby agrees to sell to
the several Placement Agents, and the Placement Agents, upon the basis of the
representations and warranties contained herein but subject to the conditions
stated herein, agree, severally and not jointly, to purchase from GST Funding,
the respective principal amount of Notes set forth in Schedule I hereto opposite
their names at a purchase price of 96.75% of the principal amount thereof, plus
accrued interest, if any, from May 13, 1997 to the date of payment and delivery.
Payment for the Notes shall be made against delivery of the
Notes at a closing (the "Closing") to be held at the offices of Shearman &
Sterling, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, at 9:00 A.M., local time, on
May 13, 1997, or at such other time on the same or such other date, not later
than May 28, 1997, as shall be designated in writing by you. The time and date
of such payment are herein referred to as the "Closing Date". Payment for the
Notes shall be made to GST Funding by wire transfer to an account previously
designated to the Placement Agents by GST Funding in immediately available
funds.
Certificates for the Notes shall be in definitive form and
registered in such names and in such denominations as you shall request in
writing not less than one full business day prior to the Closing Date. The
certificates evidencing the Notes shall be delivered to you on the Closing Date
for the respective accounts of the several Placement Agents, with any transfer
taxes payable in connection with the transfer of the Notes to the Placement
Agents duly paid, against payment of the purchase price therefor.
4. CONDITIONS TO CLOSING. The several obligations of the
Placement Agents under this Agreement to purchase the Notes will be subject to
the following conditions:
(a) Subsequent to the date of this Agreement and prior to the
Closing Date,
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of GST
Funding's, GST's or GST USA's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial
or otherwise, or in the earnings,
9
business or operations, of GST and its subsidiaries, taken as a whole,
from that set forth in the Preliminary Memorandum that, in your
judgment, is material and adverse and that makes it, in your judgment,
impracticable to market the Notes on the terms and in the manner
contemplated in the Final Memorandum.
(b) The Placement Agents shall have received on the Closing
Date certificates, dated the Closing Date and signed, respectively, by an
executive officer of GST Funding, GST and GST USA, to the effect set forth in
clause (a)(i) of this Section 4 and to the effect that the representations and
warranties of GST Funding, GST and GST USA contained in this Agreement are true
and correct in all material respects as of the Closing Date and that each of GST
Funding, GST and GST USA has complied in all material respects with all of the
agreements and satisfied in all material respects all of the conditions on its
part to be performed or satisfied in connection with the transactions
contemplated hereby or by the Memorandum on or before the Closing Date.
The officers signing and delivering such certificates may rely
upon the best of their knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date an opinion,
dated the Closing Date, of (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Frome & ▇▇▇▇▇▇▇▇▇▇ LLP, counsel
for GST Funding, GST and GST USA, in the form attached hereto as Exhibit B, (ii)
▇'▇▇▇▇▇ & Company, Canadian counsel for GST, in the form attached hereto as
Exhibit C, (iii) Thorsteinssons, Canadian tax counsel for GST, in the form
attached hereto as Exhibit D, (iv) ▇▇▇▇▇▇▇ & Berlin, Chartered, special
regulatory counsel for GST Funding, GST and GST USA, in the form attached hereto
as Exhibit E and (v) local regulatory counsel in the forms attached hereto as
Exhibit F.
(d) You shall have received on the Closing Date an opinion of
Shearman & Sterling, counsel for the Placement Agents, dated the Closing Date,
with respect to such matters as you may reasonably request.
(e) You shall have received, on each of the date hereof and
the Closing Date, a letter dated the date hereof and the Closing Date,
respectively, in form and substance satisfactory to you, from KPMG Peat Marwick
LLP, independent public accountants, containing statements and information of
the type ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in the Final Memorandum.
(f) GST Funding, GST and GST USA shall have complied with the
provisions of subsection (a) of Section 5 hereof with respect to the furnishing
of Final Memoranda on the business day next following the date of this
Agreement, in such quantities as you shall have reasonably requested.
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(g) GST Funding shall have received from GST USA a capital
contribution in cash of a least $1 million.
(h) You shall have received such other documents and
certificates as are reasonably requested by you or your counsel.
5. COVENANTS OF GST FUNDING, GST AND GST USA. In further
consideration of the agreements of the Placement Agents contained in this
Agreement, each of GST Funding, GST and GST USA covenants as follows:
(a) To furnish to you, without charge, during the period
mentioned in subsection (c) of this Section 5, as many copies of the
Final Memorandum and any supplements and amendments thereto as you may
reasonably request and to use its best efforts to deliver as many
copies of the Final Memorandum as you may request to you by 5:00 P.M.
(New York City time) on the business day next following the execution
of this Agreement.
(b) Before amending or supplementing either Memorandum, to
furnish to you a copy of each such proposed amendment or supplement and
not to use any such proposed amendment or supplement to which you
reasonably object.
(c) If, during such period after the date hereof and prior to
the date on which all of the Notes shall have been sold by the
Placement Agents, any event shall occur or condition shall exist as a
result of which it is necessary in your reasonable judgment to amend or
supplement the Final Memorandum in order to make the statements
therein, in the light of the circumstances when such Memorandum is
delivered to a purchaser, not misleading, or if, in the reasonable
opinion of counsel to the Placement Agents, it is necessary to amend or
supplement such Memorandum to comply with applicable law, forthwith to
prepare and furnish, at its own expense, to the Placement Agents,
either amendments or supplements to such Memorandum so that the
statements in such Memorandum as so amended or supplemented will not,
in the light of the circumstances when such Memorandum is delivered to
a purchaser, be misleading or omit to state a material fact or so that
such Memorandum, as so amended or supplemented, will comply with
applicable law.
(d) To endeavor to qualify the Notes for offer and sale under
the securities laws or Blue Sky laws of such jurisdictions as you shall
reasonably request; PROVIDED that none of GST Funding, GST USA or GST
shall be required to (A) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not otherwise
be required to qualify but for this paragraph (d), (B) file any general
consent to service of process or (C) subject itself to taxation in any
such jurisdiction if it is not otherwise so subject.
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(e) To use the net proceeds received by GST Funding from the
sale of the Notes in the manner specified in the Final Memorandum under
the heading "Use of Proceeds."
(f) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, to pay all
costs and expenses incident to the performance of its obligations under
this Agreement, including, without limitation: (i) the preparation of
each Memorandum and all amendments and supplements thereto, (ii) the
preparation, issuance and delivery of the Notes, including any transfer
or other taxes payable thereon, (iii) the fees and disbursements of GST
Funding's, GST's and GST USA's counsel and accountants required to
provide "comfort letters" hereunder and the Trustee and its counsel,
(iv) the qualification of the Notes under securities laws or Blue Sky
laws in accordance with the provisions of Section 5(d), including
filing fees and the fees and disbursements of counsel for the Placement
Agents in connection therewith and in connection with the preparation
of any Blue Sky or legal investment memoranda, (v) the printing and
delivery to the Placement Agents in quantities as herein stated of
copies of the Final Memorandum and any amendments or supplements
thereto, (vi) the costs and expenses of GST Funding, GST and GST USA
relating to investor presentations on any "road show" undertaken in
connection with the marketing of the Notes, including, without
limitation, expenses associated with the production of the road show
slides and graphics, fees and expenses of any consultants engaged, with
the approval of GST Funding, GST and GST USA, in connection with the
road show presentations, travel and lodging expenses of the
representatives and officers of GST Funding, GST and GST USA and any
such consultants, and the cost of any aircraft chartered in connection
with the road show, (vii) all document production charges and expenses
of counsel to the Placement Agents (but not including their fees for
professional services) in connection with the preparation of this
Agreement and the Pledge Agreement and the documents and agreements
contemplated thereby, (viii) the fees and expenses, if any, incurred in
connection with the admission of the Notes for trading in PORTAL and
any other appropriate market system and (ix) the preparation of the
Pledge Agreement and the Intercompany Security Agreement and the
instruments, documents and agreements contemplated thereby, including
the fees and disbursements of counsel for the Placement Agents in
connection therewith.
(g) None of GST Funding, GST and GST USA or any of their
Affiliates will sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the
Securities Act) which could be integrated with the sale of the Notes in
a manner which would require the registration under the Securities Act
of the Notes.
12
(h) Not to solicit any offer to buy or offer or sell the Notes
by means of any form of general solicitation or general advertising (as
such terms are used in Regulation D under the Securities Act) or in any
manner involving a public offering within the meaning of Section 4(2)
of the Securities Act.
(i) While any of the Notes remain outstanding, GST Funding,
GST and GST USA shall make available, upon request, to any seller of
such Notes the information specified in Rule 144A(d)(4) under the
Securities Act, unless GST Funding, GST and GST USA, as applicable, is
then subject to Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act").
(j) To use its best efforts to permit the Notes to be
designated PORTAL securities in accordance with the rules and
regulations adopted by the National Association of Securities Dealers,
Inc. relating to trading in the PORTAL Market.
(k) None of GST Funding, GST, GST USA, their Affiliates or any
person acting on its or their behalf (other than the Placement Agents)
will engage in any directed selling efforts (as such term is defined in
Regulation S) with respect to the Notes, and GST Funding, GST, GST USA,
their Affiliates and each person acting on its or their behalf (other
than the Placement Agents) will comply with the offering restrictions
of Regulation S.
(l) As soon as permissible under all agreements of GST in
existence on the date hereof, GST will transfer all of the capital
stock of Call America and TotalNet to GST USA, and thereafter such
companies will be wholly owned subsidiaries of GST USA.
(m) To use its best efforts to have the Notes listed on the
Luxembourg Stock Exchange as soon as practicable after the date hereof.
6. OFFERING OF NOTES; RESTRICTIONS ON TRANSFER. (a) Each
Placement Agent, severally and not jointly, represents and warrants that such
Placement Agent is a qualified institutional buyer as defined in Rule 144A under
the Securities Act (a "QIB"). Each Placement Agent, severally and not jointly,
agrees with GST Funding, GST and GST USA that (i) it will not solicit offers
for, or offer or sell, the Notes by any form of general solicitation or general
advertising (as such terms are used in Regulation D under the Securities Act) or
in any manner involving a public offering within the meaning of Section 4(2) of
the Securities Act and (ii) it will solicit offers for the Notes only from, and
will offer the Notes only to, persons that it reasonably believes to be (A) in
the case of offers inside the United States, (1) QIBs or (2) other institutional
accredited investors (as defined in Rule 501(a) (1), (2), (3) or (7) under the
Securities Act) ("institutional accredited investors") that, prior to their
purchase of any Notes, deliver to such Placement Agent a letter containing
13
the representations and agreements set forth in Annex A to the Final Memorandum
and (B) in the case of offers outside the United States, to persons other than
U.S. persons ("foreign purchasers", which term shall include dealers or other
professional fiduciaries in the United States acting on a discretionary basis
for foreign beneficial owners (other than an estate or trust)) that, in each
case, in purchasing such Notes are deemed to have represented and agreed as
provided in the Final Memorandum under the heading "Transfer Restrictions."
(b) Each Placement Agent, severally and not jointly,
represents, warrants, and agrees with respect to offers and sales outside the
United States that:
(i) it understands that no action has been or will be taken in
any jurisdiction by GST Funding, GST or GST USA that would permit a
public offering of the Notes, or possession or distribution of either
Memorandum or any other offering or publicity material relating to the
Notes, in any country or jurisdiction where action for that purpose is
required;
(ii) such Placement Agent will comply with all applicable laws
and regulations in each jurisdiction in which it acquires, offers,
sells or delivers Notes or has in its possession or distributes either
Memorandum or any such other material, in all cases at its own expense;
(iii) the Notes have not been and will not be registered under
the Securities Act and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons except in
accordance with Regulation S or pursuant to an exemption from the
registration requirements of the Securities Act;
(iv) such Placement Agent has offered the Notes and will offer
and sell the Notes (A) as part of its distribution at any time and (B)
otherwise until 40 days after the later of the commencement of the
offering and the Closing Date, only in accordance with Rule 903 of
Regulation S or another exemption from the registration requirements of
the Securities Act. Accordingly, no such Placement Agent, nor any
Affiliates of such Placement Agent, nor any persons acting on its or
their behalf have engaged or will engage in any directed selling
efforts (within the meaning of Regulation S) with respect to the Notes,
and any such Placement Agent, its Affiliates and any such persons have
complied and will comply with the offering restrictions requirements of
Regulation S;
(v) each Placement Agent represents and, during the period of
six months from the date hereof, agrees that (i) it has not offered or
sold and will not offer or sell any Notes to persons in the United
Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal
or agent) for the purposes of their businesses or otherwise in
14
circumstances which have not resulted and will not result in an offer
to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995 (the "Regulations"); (ii) it has
complied and will comply with all applicable provisions of the
Financial Services ▇▇▇ ▇▇▇▇ and the Regulations with respect to
anything done by it in relation to the Notes in, from or otherwise
involving the United Kingdom; and (iii) it has only issued or passed on
and will only issue or pass on to any person in the United Kingdom any
document received by it in connection with the issue of the Notes if
that person is of a kind described in Article 11(3) of the Financial
Services ▇▇▇ ▇▇▇▇ (Investment Advertisements) (Exemptions) Order 1996
or is a person to whom such document may otherwise lawfully be issued
or passed on;
(vi) such Placement Agent understands that the Notes have not
been and will not be registered under the Securities and Exchange Law
of Japan, and represents that it has not offered or sold, and agrees
that it will not offer or sell, any Notes, directly or indirectly in
Japan or to any resident of Japan except (A) pursuant to an exemption
from the registration requirements of the Securities and Exchange Law
of Japan and (B) in compliance with any other applicable requirements
of Japanese law; and
(vii) such Placement Agent agrees that, at or prior to
confirmation of sales of the Notes, it will have sent to each
distributor, dealer or person receiving a selling concession, fee or
other remuneration that purchases any Notes from it during the
restricted period a confirmation or notice to substantially the
following effect:
"The Notes covered hereby have not been registered
under the U.S. Securities Act of 1933 (the "Securities
Act") and may not be offered and sold within the United
States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time or
(ii) otherwise until 40 days after the later of the
commencement of the offering and the closing date, except
in either case in accordance with Regulation S (or Rule
144A, if available) under the Securities Act. Terms used
above have the meaning given to them by Regulation S."
Terms used in this Section 6 have the meanings given to them
by Regulation S.
7. INDEMNIFICATION AND CONTRIBUTION. (a) Each of GST Funding,
GST and GST USA agrees, jointly and severally, to indemnify and hold harmless
each Placement Agent, and each person, if any, who controls such Placement Agent
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, or is under common control with, or is controlled by, such
Placement Agent, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by any Placement Agent or any such controlling or affiliated
15
person in connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement of a material fact
contained in either Memorandum (as amended or supplemented if GST Funding and
GST shall have furnished any amendments or supplements thereto), or caused by
any omission or alleged omission to state therein a material fact necessary to
make the statements therein in light of the circumstances under which they were
made not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Placement
Agent furnished to GST Funding or GST in writing by such Placement Agent through
you expressly for use therein.
(b) Each Placement Agent agrees, severally and not jointly, to
indemnify and hold harmless GST Funding, GST and GST USA, their directors, their
officers and each person, if any, who controls GST Funding, GST or GST USA
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from GST Funding,
GST and GST USA to such Placement Agent, but only with reference to information
relating to such Placement Agent furnished to GST Funding or GST in writing by
such Placement Agent through you expressly for use in either Memorandum or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either subsection (a) or (b) of this Section
7, such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all such indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated in the case of parties indemnified pursuant to
subsection (a) above and by GST Funding, GST and GST USA in the case of parties
indemnified pursuant to subsection (b) above. The indemnifying party shall not
be liable for any settlement of any proceeding effected without
16
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this subsection (c), the indemnifying party agrees that
it shall be liable for any settlement of any proceeding effected without its
written consent if (A) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (B) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in
subsection (a) or (b) of this Section 7 is unavailable to an indemnified party
or insufficient in respect of any losses, claims, damages or liabilities, then
each indemnifying party under such subsection, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by GST Funding, GST and GST USA, on the one hand, and the
Placement Agents, on the other hand, from the offering of the Notes or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of GST Funding, GST
and GST USA on the one hand and the Placement Agents on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by GST Funding, GST and GST USA
on the one hand and the Placement Agents on the other hand in connection with
the offering of the Notes shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Notes (before deducting
expenses) received by GST Funding, GST and GST USA and the total discounts and
commissions received by the Placement Agents in respect thereof bear to the
aggregate offering price of the Notes. The relative fault of GST Funding, GST
and GST USA on the one hand and of the Placement Agents on the other hand shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by GST Funding, GST and GST USA
or by the Placement Agents and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Placement Agents' respective obligations to contribute pursuant to this
17
Section 7 are several in proportion to the respective principal amount at
maturity of Notes they have purchased hereunder, and not joint.
(e) GST Funding, GST and GST USA, and the Placement Agents
agree that it would not be just or equitable if contribution pursuant to this
Section 7 were determined by PRO RATA allocation (even if the Placement Agents
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred
to in subsection (d) of this Section 7. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in subsection (d) of this Section 7 shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, no Placement Agent shall be required to contribute any amount in
excess of the amount by which the total price at which the Notes resold by it in
the initial placement of the Notes were offered to investors exceeds the amount
of any damages that such Placement Agent has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
indemnity and contribution provisions contained in this Section 7 and the
representations and warranties of GST Funding, GST and GST USA and the Placement
Agents contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of the Placement Agents or any person
controlling the Placement Agents or by or on behalf of GST Funding, GST or GST
USA, their officers or directors or any person controlling GST Funding, GST or
GST USA and (iii) acceptance of and payment for any of the Notes. The remedies
provided for in this Section 7 are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any indemnified party at law or
in equity.
8. TERMINATION. This Agreement shall be subject to termination
by notice given by you to GST Funding and GST, if (a) after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board of Options Exchange,
the Chicago Mercantile Exchange, the Chicago Board of Trade or the Vancouver
Stock Exchange, (ii) trading of any securities of GST Funding, GST or GST USA
shall have been suspended on any exchange or in any over-the-counter market,
(iii) a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities or (iv) there
shall have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in your judgment, is material
and adverse and (b) in the case of any of the events
18
specified in clauses (a)(i) through (iv), such event individually or together
with any other such event makes it, in your judgment, impracticable to market
the Notes on the terms and in the manner contemplated in the Final Memorandum.
9. MISCELLANEOUS. (a) If, on the Closing Date, any one
Placement Agent shall fail or refuse to purchase Notes that it agreed to
purchase hereunder on such date, and the principal amount of Notes which such
defaulting Placement Agent agreed but failed or refused to purchase is not more
than one-tenth of the total principal amount of the Notes to be purchased on
such date, the other Placement Agents shall be obligated to purchase the Notes
which such defaulting Placement Agent agreed but failed or refused to purchase
on such date; PROVIDED that in no event shall the principal amount of Notes that
any Placement Agent has agreed to purchase pursuant to Section 3 be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such principal
amount of Notes without the written consent of such Placement Agent. If, on the
Closing Date any Placement Agent or Placement Agents shall fail or refuse to
purchase Notes which it or they have agreed to purchase hereunder on such date
and the principal amount of Notes with respect to which such default occurs is
more than one-tenth of the principal amount of Notes to be purchased on such
date and arrangements satisfactory to you and GST Funding and GST for the
purchase of such Notes are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Placement Agent or of GST Funding, GST and GST USA. In any such case either you
or GST Funding and GST shall have the right to postpone the Closing Date, but in
no event for longer than seven days, in order that the required changes, if any,
in the Final Memorandum or in any other documents or arrangements may be
effected. Any action taken under this subsection shall not relieve any
defaulting Placement Agent from liability in respect of any default of such
Placement Agent under this Agreement.
This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
(b) If this Agreement shall be terminated by the Placement
Agents, or any of them, because of any failure or refusal on the part of GST
Funding, GST or GST USA to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason GST Funding, GST or GST USA
shall be unable to perform its obligations under this Agreement, GST Funding,
GST and GST USA will reimburse such Placement Agents as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
such Placement Agents in connection with this Agreement or the offering
contemplated hereunder.
(c) Each of GST Funding, GST, and GST USA hereby (i)
acknowledges that it has irrevocably designated and appointed ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Frome & ▇▇▇▇▇▇▇▇▇▇
19
LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
(together with any successor, the "Process Agent"), as its authorized agent upon
which process may be served in any suit, action or proceeding arising out of or
relating to this Agreement or the transactions contemplated herein, the
Indenture, the Registration Rights Agreement, the Pledge Agreement, the Notes or
the Note Guarantee that may be instituted in any federal or state court in the
State of New York, or brought under federal or state securities laws, and
acknowledges that the Process Agent has accepted such designation, (ii) agrees
that service of process upon the Process Agent and written notice of such
service to GST Funding, GST or GST USA, as the case may be (mailed or delivered
to GST's Chief Executive Officer at GST's principal office at 4317 N.E. ▇▇▇▇▇▇▇▇
Way, Vancouver, Washington 98662), shall be deemed in every respect effective
service of process upon GST Funding, GST or GST USA, as the case may be, in any
suit, action or proceeding and (iii) agrees to take any and all action,
including the execution and filing of any and all such documents and instruments
as may be necessary to continue such designation and appointment of the Process
Agent in full force and effect so long as any of the Notes shall be outstanding.
Each of GST Funding, GST and GST USA hereby agrees to submit to the nonexclusive
jurisdiction of any federal or state court in the State of New York in any such
suit, action or proceeding arising out of or relating to this Agreement or the
transactions contemplated herein, the Indenture, the Registration Rights
Agreement, the Pledge Agreement, the Notes or the Note Guarantee.
(d) To the extent that GST has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution or otherwise) with respect to itself or its property, it hereby
irrevocably waives such immunity in respect of its obligations under this
Agreement, the Indenture, the Registration Rights Agreement or the Note
Guarantee, to the extent permitted by law.
(e) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(f) The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
(g) Any notice required or permitted to be given hereunder
shall be given in writing and shall be deemed effective three days after deposit
in the United States mail (certified or registered, return receipt requested),
postage prepaid, or when received if personally delivered, addressed as follows:
20
To the Placement Agents: To GST Funding, GST or GST USA:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. GST Telecommunications, Inc.
Incorporated ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Chief Executive Officer
Attention: ▇▇▇▇▇ ▇▇▇▇▇
with a copy to: with a copy to:
Shearman & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Frome &
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
or to such other address of which written notice is given to the other.
21
Please confirm your agreement to the foregoing by signing in
the space provided below for that purpose and returning to us a copy hereof,
whereupon this Agreement shall constitute a binding agreement between us.
Very truly yours,
GST EQUIPMENT FUNDING, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
GST TELECOMMUNICATIONS, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
GST USA, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
Agreed as of the date first above written
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
Acting severally on behalf of itself
and the several Placement Agents named
herein.
By ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
SCHEDULE I
Principal Amount
PLACEMENT AGENT TO BE PURCHASED
--------------- ---------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated.............. $206,700,000
▇▇▇▇▇▇, Read & Co. Inc......................... $ 45,050,000
TD Securities (USA) Inc........................ $ 13,250,000
Total................. $265,000,000
============
SCHEDULE II
Specified Subsidiaries
GST Telecom Inc., a Delaware corporation
GST Pacific Lightwave, Inc., a Washington corporation
GST Pacwest Telecom Hawaii Incorporated, a Hawaii corporation
GST Telecom Hawaii, Inc., a Hawaii corporation
GST Tucson Lightwave, Inc., an Arizona corporation
GST Telecom New Mexico, Inc., a New Mexico corporation
GST Telecom California, Inc., a Delaware corporation
NACT Telecommunications, Inc., a Delaware corporation
Wasatch International Network Services, Inc., a Utah corporation
GST Net, Inc., a Delaware corporation
International Telemanagement Group, Inc., an Ohio corporation
TotalNet Communications, Inc., a Texas corporation
GST Call America, Inc., a California corporation
GST USA, Inc., a Delaware corporation
Tri Star Residential Communications Corp., a Washington corporation
GST EquipCo, Inc., a Washington corporation
GST Internet, Inc., a Delaware corporation