EXHIBIT 4.6
[EXECUTION COPY]
FIRST AMENDMENT AND CONSENT
TO CREDIT AGREEMENT
THIS FIRST AMENDMENT AND CONSENT TO CREDIT AGREEMENT (this
"Amendment"), dated as of December 15, 1997, to the Existing Credit Agreement
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(as defined below), is made by GLOBAL TELESYSTEMS LTD., a corporation organized
and existing under the laws of Bermuda (the "Borrower"), the Lenders (such
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capitalized term and other capitalized terms used in this preamble and the
recitals below to have the meanings set forth in Article I) signatories hereto,
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DEUTSCHE BANK AG, NEW YORK BRANCH, and CANADIAN IMPERIAL BANK OF COMMERCE,
acting by and/or through one or more of its branches, agencies or affiliates
("CIBC"), as lead agents for the Lenders (in such capacity, the "Lead Agents"),
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DEUTSCHE BANK AG, NEW YORK BRANCH, as administrative agent for the Lenders (in
such capacity, the "Administrative Agent"), and CIBC, as syndication agent for
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the Lenders (in such capacity, the "Syndication Agent"), documentation agent for
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the Lenders (in such capacity, the "Documentation Agent") and issuer of the
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Letters of Credit referred to herein (in such capacity, the "Issuing Bank").
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W I T N E S S E T H:
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WHEREAS, the Borrower, the Lenders, the Lead Agents, the
Administrative Agent, the Syndication Agent, the Documentation Agent and the
Issuing Bank are parties to the Credit Agreement, dated as of June 27, 1997 (as
amended, supplemented, amended and restated or otherwise modified prior to the
date hereof, the "Existing Credit Agreement", and as amended by this Amendment
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and as the same may be further amended, supplemented, amended and restated or
otherwise modified from time to time, the "Credit Agreement");
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WHEREAS, the Borrower desires to (a) make an addition to the
configuration of the System by adding a landing site in The Netherlands, (b) add
an extension to the System to connect Denmark, which extension the Borrower will
either own in part or have rights with respect to a portion of the capacity
thereon, (c) acquire and provide backhaul service in certain locations, (d)
provide interim restoration for purchasers of capacity and (e) increase its
sales staff;
WHEREAS, the parties hereto wish to modify the Existing Credit
Agreement to allow for the foregoing and related matters;
NOW, THEREFORE, for and in consideration of the premises and of the
mutual agreements contained herein, the parties hereto hereby covenant and agree
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Definitions. The following terms when used in
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this Amendment shall have the following meanings (such meanings to be equally
applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
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"Amendment" is defined in the preamble.
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"Amendment Effective Date" is defined in Article IV.
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"Borrower" is defined in the preamble.
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"Credit Agreement" is defined in the first recital.
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"Documentation Agent" is defined in the preamble.
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"Existing Credit Agreement" is defined in the first recital.
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"Issuing Bank" is defined in the preamble.
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"Lead Agents" is defined in the preamble.
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"Syndication Agent" is defined in the preamble.
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SECTION 1.2. Other Definitions. Terms for which meanings are
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provided in the Credit Agreement are, unless otherwise defined herein or the
context otherwise requires, used in this Amendment with such meanings.
ARTICLE II
AMENDMENTS TO CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Amendment
Effective Date, the provisions of the Existing Credit Agreement referred to
below are hereby amended in accordance with this Article II. Except as
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expressly so amended, the Existing Credit Agreement shall continue in full force
and effect in accordance with its terms.
SECTION 2.1. Modification of Article I (Definitions). Article I of
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the Existing Credit Agreement is hereby amended in accordance with Sections
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2.1.1 through 2.1.7.
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SECTION 2.1.1. Section 1.1 of the Existing Credit Agreement is hereby
amended by inserting the following definitions in such Section in the
appropriate alphabetical sequence:
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"Amendment No. 1" means the First Amendment and Consent to Credit
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Agreement, dated as of December 15, 1997, to this Agreement.
"Backhaul Service" means the acquisition and disposition of capacity,
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initially constituting one STM-16 backhaul circuit in the United Kingdom
and two STM-16 backhaul circuits in the United States, on inland
telecommunications systems owned or controlled by parties other than the
Borrower and its Affiliates which connect to any cable station on the
System, and activities incidental thereto, the costs of which are initially
provided for in the Capital Budget or, in the future, (i) prior to the
adoption of the first Operating Budget, additional acquisitions of such
capacity (provided that the Borrower shall have commitments from purchasers
of such capacity, as determined on a net present value basis acceptable to
the Lead Agents, in an amount at least equal to its costs for such capacity
less an amount of up to $5,000,000 in the aggregate) or (ii) thereafter,
additional acquisitions of such capacity, the costs of which are provided
for in any Operating Budget.
"Borrower's Amendment Request Letter" means the letter, dated November
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4, 1997, from the Borrower to the Lenders entitled "Amendment to Senior
Credit Agreement".
"Denmark Extension" means a cable extension to the System which is to
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be used to provide direct telecommunications service to Denmark and which
shall be owned in part by the Borrower or as to which the Borrower shall
have rights to use capacity thereon, in each case subject to a perfected
security interest in favor of the Administrative Agent (it being understood
that such security interest shall relate solely to the Borrower's contract
rights with respect thereto, or if through a Subsidiary, such Subsidiary's
contract rights and bank accounts with respect thereto) and constituting
approximately a pro rata portion (based on the Borrower's investment) of
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such extension's capacity, and in which the Borrower's investment does not
exceed $3,500,000 in the aggregate, as provided for in the Capital Budget.
"Interim Restoration" means the ability to provide alternative service
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as a back-up to service on the System, all of the costs (including per diem
use fees and usage costs) of which have been provided for in the Capital
Budget, by insurance or by the purchasers of Capacity.
"Netherlands Landing Site" means the site located in The Netherlands
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where the System will land, together with all real property and other
rights and property interests associated therewith.
"Netherlands Subsidiary" means the Netherlands corporation to be
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formed by the Borrower as a direct, wholly-owned subsidiary of the Borrower
in connection with the Netherlands Landing Site.
"Tyco Guaranty" means the Guaranty, dated as of November 24, 1997,
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made by Tyco International (US) Inc. in favor of the Borrower, as the same
may be amended, supplemented, amended and restated or otherwise modified
from time to time.
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SECTION 2.1.2. Section 1.1 of the Existing Credit Agreement is hereby
amended by amending the definition of "Guaranteed Completion Date" by deleting
the date "June 30, 1999" appearing therein and inserting in replacement therefor
the date "September 30, 1999".
SECTION 2.1.3. Section 1.1 of the Existing Credit Agreement is hereby
amended by amending the definition of "Landing Countries" by inserting a new
sentence at the end thereof as follows: "As of the effective date of Amendment
No. 1, the System is also planned to land (and the Supply Contract amendment
described in Section 3.5 of Amendment No. 1 provides for landing) in The
Netherlands.".
SECTION 2.1.4. Section 1.1 of the Existing Credit Agreement is hereby
amended by amending the definition of "Sales Threshold" by (a) deleting the
amount "$296,500,000" appearing at the end thereof and inserting in replacement
therefor the amount "$368,000,000", (b) deleting clause (a) thereof and
inserting the following in replacement therefor:
"(a) an amount equal to all cash payments received by the Borrower and its
Subsidiaries on or prior to such date (i) under Capacity Sales Agreements
entered into in accordance with Section 6.23, (ii) for providing Backhaul
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Service in accordance with Section 6.23, (iii) under sales arrangements
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entered into in accordance with Section 6.23 for the sale of capacity on
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the Denmark Extension, (iv) with respect to Interim Restoration and (v) in
respect of reimbursement for set up costs for Interim Restoration (the
items described in the foregoing clauses (ii) through (v) being hereinafter
referred to as the "Additional Sources of Funds"), plus",
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and (c) by adding the following words to clause (b) thereof after the reference
to Section 6.23 and before the parenthetical: "plus an amount equal to the
aggregate amount of firm commitments outstanding as of such date in respect of
Additional Sources of Funds".
SECTION 2.1.5. Section 1.1 of the Existing Credit Agreement is hereby
amended by amending the definition of "System" in its entirety to read as
follows:
"System" means the four fiber pair, fiber-optic submarine cable system
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to be known as the Atlantic Crossing Cable System or AC-1, which is
intended to be used to provide direct telecommunications service between
and among the United States, the United Kingdom, the Federal Republic of
Germany and The Netherlands (as modified from time to time in accordance
with the terms hereof), notwithstanding the definition thereof set forth in
the second recital.
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SECTION 2.1.6. Section 1.1 of the Existing Credit Agreement is hereby
amended by amending the definition of "System Activities" by inserting "and the
Denmark Extension (including the acquisition and disposition of capacity
thereon), Backhaul Service and Interim Restoration" at the end thereof before
the period.
SECTION 2.1.7. Section 1.1 of the Existing Credit Agreement is hereby
amended by amending the definition of "System Contracts" by inserting ", the
Tyco Guaranty" after the words "the Supply Contract Guaranty," appearing on the
second line thereof.
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SECTION 2.2. Modification of Article II (Commitments). Article II of the
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Existing Credit Agreement is hereby amended in accordance with Section 2.2.1.
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SECTION 2.2.1. Section 2.09(a) of the Existing Credit Agreement is hereby
amended by deleting the amount "$400,000,000" in both places where it appears
therein and inserting in replacement therefor in both such places the amount
"$472,000,000".
SECTION 2.3. Modification of Article V (Affirmative Covenants). Article V
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of the Existing Credit Agreement is hereby amended in accordance with Section
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2.3.1.
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SECTION 2.3.1. Section 5.12 of the Existing Credit Agreement is hereby
amended by (a) inserting ", it being understood and agreed that the proceeds of
the Term Loans may only be used to pay for up to $3,500,000 of the cost of the
Denmark Extension" at the end of the first sentence thereof, and (b) inserting
"and to make payments in connection with Backhaul Service and Interim
Restoration, and to pay certain costs relating to the Netherlands Landing Site
in accordance with the Capital Budget" at the end of the second sentence
thereof.
SECTION 2.4. Modification of Article VI (Negative Covenants). Article VI
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of the Existing Credit Agreement is hereby amended in accordance with Sections
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2.4.1 through 2.4.3.
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SECTION 2.4.1. Section 6.04(a) of the Existing Credit Agreement is hereby
amended by inserting the following at the end thereof: ", Transfers of capacity
on the Denmark Extension, Transfers of capacity in respect of Interim
Restoration and Transfers of capacity in respect of Backhaul Service, in each
case in accordance with Section 6.23".
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SECTION 2.4.2. Section 6.16(e) of the Existing Credit Agreement is hereby
amended by inserting the following at the end thereof (but before the comma at
the end thereof): "(including with respect to (i), and ancillary to the
implementation of, the Netherlands Landing Site, (ii) the construction,
installation, maintenance, operation or use of, or the acquisition of rights in,
the Denmark Extension, all on terms to be reviewed by and reasonably
satisfactory to the Lead Agents, (iii) Backhaul Service and (iv) Interim
Restoration, all on terms otherwise permitted pursuant to this Agreement and
Article III of Amendment No. 1".
SECTION 2.4.3. Section 6.23 of the Existing Credit Agreement is hereby
amended by:
(a) deleting the words "dispose Capacity" appearing in the second
line thereof and inserting the following in replacement therefor: "dispose
of Capacity or capacity provided through Backhaul Service, the Denmark
Extension or Interim Restoration"; and
(b) deleting in its entirety the parenthetical appearing in clause
(b) thereof and inserting the following in replacement therefor before the
first proviso appearing therein: "(which shall include the disposition of
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Capacity without cash compensation in exchange for mutual restoration
agreements or for reasonably equivalently valued capacity on other
telecommunications systems, provided that no more than 20
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transatlantic STM-1 circuits may be so used to transfer Capacity without
cash compensation in exchange for capacity on other telecommunications
systems) or (c) with respect to capacity related to Backhaul Service, the
Denmark Extension or Interim Restoration, pursuant to other agreements or
arrangements which are on commercially reasonable terms (which may include
the disposition of capacity with respect to Backhaul Service or with
respect to the Denmark Extension without cash compensation in exchange for
mutual restoration agreements or for reasonably equivalent capacity on
other telecommunications systems)".
SECTION 2.5. Modification of Schedules and Exhibits. Certain of the
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schedules and exhibits to the Existing Credit Agreement are hereby amended in
accordance with Sections 2.5.1 through 2.5.6.
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SECTION 2.5.1. Schedule 2.01 (Commitments) to the Existing Credit
Agreement is hereby amended and restated in its entirety to read as set forth in
Annex I hereto.
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SECTION 2.5.2. Schedule 2.09 (Amortization Schedule) to the Existing
Credit Agreement is hereby amended and restated in its entirety to read as set
forth in Annex II hereto.
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SECTION 2.5.3. Schedule 3.05(a) (Borrower Capital Structure) to the
Existing Credit Agreement is hereby amended and restated in its entirety to read
as set forth in Annex III hereto.
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SECTION 2.5.4. Schedule 3.05(b) (Subsidiaries) to the Existing Credit
Agreement is hereby amended and restated in its entirety to read as set forth in
Annex IV hereto.
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SECTION 2.5.5. Schedule 3.17 (Collateral Filings) to the Existing Credit
Agreement is hereby amended and restated in its entirety to read as set forth in
Annex V hereto.
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SECTION 2.5.6. Exhibit L (Form of Pre-approved Capacity Sales Agreement)
to the Existing Credit Agreement is hereby amended and restated in its entirety
to read as set forth in Annex VI hereto.
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ARTICLE III
CONSENTS
Effective on (and subject to the occurrence of) the Amendment Effective
Date, consents regarding certain provisions of the Existing Credit Agreement
referred to below are hereby granted by the Majority Lenders in accordance with
this Article III.
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SECTION 3.1. Section 2.05(c) Consent. The Majority Lenders hereby consent
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to the extension of the expiration date of the Contingency Letter of Credit due
to the extension of the Guaranteed Completion Date.
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SECTION 3.2. Section 5.28 Consent. The Majority Lenders hereby consent
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that, notwithstanding the terms of Section 5.28 of the Existing Credit
Agreement, the Borrower's obligations with respect to the Netherlands Subsidiary
and the Netherlands Subsidiary's obligations shall be as set forth in Section
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7.1 of this Amendment.
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SECTION 3.3. Section 6.01 Consent. The Majority Lenders hereby consent to
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the additional Indebtedness incurred under the Loan Documents by reason of the
amendment to Schedule 2.01 to the Existing Credit Agreement effected by Section
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2.5.1 of this Amendment.
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SECTION 3.4. Section 6.07 Consent. The Majority Lenders hereby consent to
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the amendment of the OA&M Agreement set forth in Annex VII.
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SECTION 3.5. Section 6.08 Consent. The Majority Lenders hereby consent to
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the amendment to the Supply Contract set forth in Annex VIII, including for
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purposes of Section 6.08(a)(ii) and Section 6.08(b)(i)(A) of the Existing Credit
Agreement.
SECTION 3.6. Section 6.09 Consent. The Majority Lenders hereby consent to
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the addition of The Netherlands as an additional Landing Country, the costs of
which are being financed with Loans provided for in the Credit Agreement, and to
the Denmark Extension, all on terms otherwise permitted under this Amendment.
SECTION 3.7. Section 6.19(c) Consent. The Majority Lenders hereby consent
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to the creation of the Netherlands Subsidiary for the purposes and on the terms
set forth in this Amendment and the Credit Agreement.
SECTION 3.8. Section 6.21 Consent. The Majority Lenders hereby consent to
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the modifications to the Capital Budget effected by the revised Capital Budget
attached hereto as Annex IX, and further consent that the term "Capital Budget"
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shall hereafter mean such Capital Budget, as the same may be amended or
otherwise modified in accordance with Section 6.21 of the Credit Agreement.
SECTION 3.9. System Upgrade Consent. The Majority Lenders hereby consent
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to the upgrade of the United States to Germany Segment of the System in order to
terminate service in Germany at the full four-fiber pair with Capacity of 10
Gb/s per fiber pair in accordance with the Capital Budget and the Supply
Contract.
SECTION 3.10. Unisource Parties Consent. The Majority Lenders hereby
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consent to each of PTT Telecom BV, Swiss Confederation, acting through Swisscom,
and Telia AB as an acceptable obligor under a Capacity Sales Agreement
regardless of its long-term debt rating for purposes of determining the Sales
Threshold in accordance with the definition thereof.
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ARTICLE IV
CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective as of the date first above
written upon satisfaction of each of the conditions precedent set forth in this
Article IV to the satisfaction of the Administrative Agent (the first date as of
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which each such condition has been satisfied being herein called the "Amendment
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Effective Date").
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SECTION 4.1. Compliance with Warranties. The representations and
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warranties set forth in Article VI hereof shall be true and correct in all
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material respects.
SECTION 4.2. Counterparts. The Lead Agents shall have received (a)
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counterparts hereof executed on behalf of the Borrower, each other Obligor party
hereto, the Majority Lenders and each Lender whose Commitment has increased (as
reflected on amended Schedule 2.01 attached hereto) and (b) counterparts of the
Fee Letter, dated as of the date hereof, duly executed by the Borrower and the
Administrative Agent (the "Fee Letter").
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SECTION 4.3. Fees and Expenses. The Administrative Agent shall have
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received (a) for the benefit of the Lead Agents and all Lenders, all fees agreed
to in the Fee Letter and (b) all expenses due and payable pursuant to Section
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10.5 (to the extent then invoiced) and pursuant to the Existing Credit Agreement
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(including all previously invoiced fees and expenses).
SECTION 4.4. Authorization; Legal Opinions, etc. The Administrative
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Agent shall have received (a) certified resolutions from the Borrower duly
authorizing this Amendment and all related documentation, (b) customary
favorable legal opinions from U.S. and Bermuda counsel to the Borrower and
counsel to the Contractor with respect to the matters contemplated by this
Amendment and such amendments, respectively, all reasonably satisfactory to the
Administrative Agent, and (c) a certificate from an authorized officer of the
Borrower setting forth that (i) all representations and warranties made in this
Amendment are true and correct in all material respects as if made on the date
thereof, (ii) no defaults have occurred and are continuing, (iii) there are no
regulatory restrictions prohibiting the contemplated activities and (iv) there
has been no material adverse change in the matters set forth in the Borrower's
Amendment Request Letter (excluding any financial projections and other
estimates or views of future circumstances), as updated in writing by the
Borrower under its letter, dated December 9, 1997, taken as a whole.
SECTION 4.5. Filings, etc. The Administrative Agent shall have
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received, in form suitable for filing and reasonably satisfactory to the
Administrative Agent, all filings and other documentation (including as may be
required under Bermuda law) necessary to ensure that all Indebtedness permitted
to be incurred under the Credit Agreement (including the additional Indebtedness
permitted to be incurred in accordance with Section 3.3 of this Amendment) shall
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be appropriately secured and perfected as required by the terms of the Credit
Agreement.
SECTION 4.6. Permits, etc. Schedule 3.08 (Governmental Actions) to
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the Existing Credit Agreement shall be updated with respect to the Netherlands
Landing Site and other
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permits that may be required in connection with the transactions contemplated by
this Amendment in a manner reasonably satisfactory to the Independent Engineer
and the Lead Agents.
SECTION 4.7. Tyco Guaranty. The Administrative Agent shall have
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received a guaranty from Tyco International (US) Inc. ("Tyco International") in
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the form of Annex X, duly executed and delivered by Tyco International and duly
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acknowledged by the Contractor in the location set forth thereon, together with
certified resolutions of Tyco International authorizing such guaranty and a
favorable legal opinion of counsel to Tyco International reasonably satisfactory
to the Lead Agents.
SECTION 4.8. Legal Details, etc. All documents executed or submitted
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pursuant hereto shall be reasonably satisfactory in form and substance to the
Administrative Agent and its counsel. The Administrative Agent and its counsel
shall have received all information and such counterpart originals or such
certified or other copies or such materials, as the Administrative Agent or its
counsel may reasonably request, and all legal matters incident to the
transactions contemplated by this Amendment shall be satisfactory to the
Administrative Agent and its counsel.
ARTICLE V
CONDITIONS TO DRAW ON TERM LOANS
FOR NETHERLANDS LANDING SITE COSTS
SECTION 5.1. Additional Conditions Precedent. In addition to the
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conditions precedent set forth in Section 4.02 of the Credit Agreement, it shall
also be a condition precedent to the draw of any Term Loan for the purpose of
providing financing for any costs associated with the Netherlands Landing Site
that the Administrative Agent shall have received executed copies of signed,
enforceable Capacity Sales Agreements that are represented and warranted by the
Borrower to be in full force and effect with the Unisource parties referred to
in the Borrower's Amendment Request Letter for an amount totaling at least
$82,000,000.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.1. Representations and Warranties. In order to induce the
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Lenders, the Issuing Bank and the Agents to enter into this Amendment, the
Borrower hereby reaffirms, as of the Amendment Effective Date, that each of its
representations and warranties contained in the Credit Agreement and each other
Loan Document are true and correct in all material respects as of the Amendment
Effective Date (unless any such representation or warranty relates solely to an
earlier date, in which case it shall have been true and correct in all material
respects as of such earlier date, except that for these purposes, the references
to the term "Closing Date" in Sections 3.17 and 3.18 of the Credit Agreement
shall be deemed to be
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references to the Amendment Effective Date) and additionally represents and
warrants unto the Lenders, the Issuing Bank and the Agents as set forth in this
Article VI.
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SECTION 6.2. Validity, etc. This Amendment constitutes the legal,
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valid and binding obligation of the Borrower and each other Obligor party
hereto, enforceable in accordance with its terms subject to the effect of any
applicable bankruptcy, insolvency, moratorium or similar laws affecting
creditors' rights generally.
SECTION 6.3. No Default. No Default or Event of Default has occurred
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and is continuing, and neither the Borrower nor any other Obligor is in
violation of (or, after giving effect to the activities contemplated by this
Amendment, will be in violation of) any law or Governmental Action.
SECTION 6.4. True Copies. Attached hereto are true and complete
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copies of (a) the amendment to the Supply Contract and the amendment to the OA&M
Agreement dealing with the activities contemplated by this Amendment, and no
other amendments or other modifications to such agreements have been executed as
of the Amendment Effective Date, and (b) the new Capital Budget and updated
projections.
SECTION 6.5. Disclosure. The Borrower's Amendment Request Letter
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(excluding any financial projections and other estimates or views of future
circumstances), as updated in writing by the Borrower under its letter, dated
December 9, 1997, taken as a whole, does not contain, as of December 9, 1997,
any untrue statements of material fact and does not omit to state, as of the
Amendment Effective Date, any material fact necessary in order to make the
statements contained therein, in light of the circumstances under which they
were made, not materially misleading. The costs set forth in the Capital Budget
attached hereto reflect, as of the Amendment Effective Date, the Borrower's best
estimates of all costs necessary for the construction, installation and
financing of the System. The updated projections delivered by the Borrower to
the Lenders have been prepared in good faith and have been based on assumptions
which were reasonable at the time prepared.
ARTICLE VII
COVENANTS
SECTION 7.1. Covenants. In order to induce the Lenders, the Issuing
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Bank, the Administrative Agent and the Lead Agents to enter into this Amendment,
the Borrower covenants and agrees that within the earlier of (a) 120 days after
the Amendment Effective Date and (b) 90 days after the date of formation of the
Netherlands Subsidiary (or such longer periods, if any, to which the Lead Agents
may agree in writing), the Borrower shall (i) execute and deliver a supplement
to the Borrower Pledge Agreement and/or an appropriate Foreign Subsidiary Pledge
Supplement for the purpose of pledging to the Administrative Agent for each of
the Lender Parties all of its interests in the Netherlands Subsidiary, all on
terms reasonably satisfactory to the Lead Agents, (ii) cause the Netherlands
Subsidiary to grant to the Administrative Agent (or the Borrower, if a grant in
favor of the Administrative Agent is prohibited under local law or if the Lead
Agents otherwise agree in writing) a first priority, perfected lien on any of
the Netherlands Subsidiary's bank accounts and (iii) duly file
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for the issuance of any Landing License, if required, in respect of the
Netherlands Landing Site.
ARTICLE VIII
AFFIRMATION AND CONSENT OF OBLIGORS
SECTION 8.1. Affirmation and Consent. In order to induce the
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Lenders, the Issuing Bank, the Administrative Agent and the Lead Agents to enter
into this Amendment, each of the undersigned Obligors (other than the Borrower)
hereby (a) acknowledges, consents and agrees to the terms and conditions set
forth in this Amendment; (b) reaffirms, as of the Amendment Effective Date, (i)
the covenants and agreements contained in each Loan Document to which it is a
party, including, in each case, as such covenants and agreements may be modified
by the transactions contemplated hereby, and (ii) its guarantee of payment of
the Obligations pursuant to the Subsidiary Guaranty (if applicable); (c)
certifies that, as of the date hereof (both before and after giving effect to
the occurrence of the Amendment Effective Date), the representations and
warranties made by it contained in the Loan Documents to which it is a party are
true and correct in all material respects with the same effect as if made on the
date hereof, except to the extent any such representation or warranty refers or
pertains solely to a date prior to the date hereof (in which case such
representation and warranty was true and correct in all material respects as of
such earlier date); (d) confirms that each Loan Document to which it is a party
is and shall continue to be in full force and effect and the same are hereby
ratified and confirmed in all respects, except that upon the occurrence of the
Amendment Effective Date, all references in such Loan Documents to the "Credit
Agreement", "Loan Documents", "thereunder", "thereof", or words of similar
import shall mean the Credit Agreement and the Loan Documents, as the case may
be, in each case after giving effect to the amendments and other modifications
provided for herein.
Each of the undersigned Obligors (other than the Borrower) hereby
acknowledges and agrees that the acceptance by the Lenders, the Issuing Bank,
the Administrative Agent and the Lead Agents of this Amendment shall not be
construed in any manner to establish any course of dealing on any such Person's
part, including the providing of any notice or the requesting of any
acknowledgment not otherwise expressly provided for in any Loan Document with
respect to any future amendment, waiver, supplement or other modification to any
Loan Document or any arrangement contemplated by any Loan Document.
ARTICLE IX
RIGHT OF QUIET ENJOYMENT
SECTION 9.1. Right of Quiet Enjoyment. The Administrative Agent and
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each Lender agrees, for the benefit of each Person not an Affiliate of the
Borrower now or hereafter acquiring rights from the Borrower or any of its
Subsidiaries in any Capacity or in any capacity in any inland system pursuant to
a Capacity Sales Agreement, indefeasible right of use agreement, any inland
capacity purchase agreement or otherwise in accordance with
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Section 6.23 of the Credit Agreement (a "Capacity Purchaser"), that,
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notwithstanding any other provision hereof or any other Loan Document, so long
as no event has occurred and is continuing under such agreement which entitles
the "Grantor" thereunder to suspend service for such person, the Administrative
Agent and such Lender will not take or cause to be taken any action to interfere
with such person's right to quiet enjoyment and use of the rights granted to
such person in accordance with the terms of such agreement. The Administrative
Agent agrees to provide, and the Lenders hereby authorize it to provide, at the
written request of the Borrower, a written confirmation of the foregoing for the
benefit of such Capacity Purchasers.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Cross References. References in this Amendment to any
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article or section are, unless otherwise specified, to such article or section
of this Amendment.
SECTION 10.2. Loan Document Pursuant to Credit Agreement. This
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Amendment is a Loan Document executed pursuant to the Existing Credit Agreement
and shall be construed, administered and applied in accordance with all of the
terms and provisions of the Existing Credit Agreement.
SECTION 10.3. Successors and Assigns. This Amendment shall be
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binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
SECTION 10.4. Counterparts. This Amendment may be executed by the
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parties hereto in several counterparts, all of which shall be deemed to be an
original and which shall constitute together but one and the same agreement.
SECTION 10.5. Expenses. The Borrower hereby agrees to pay to or
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reimburse the Administrative Agent and the Lead Agents, upon demand, all of
their reasonable expenses in connection with the development, negotiation,
preparation, syndication, execution and closing of this Amendment, including all
reasonable fees and other charges of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ in connection
therewith.
SECTION 10.6. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
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CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 10.7. Event of Default. It is understood and agreed that any
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breach of Section 7.1 hereof shall constitute an immediate Event of Default.
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-12-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers hereunder duly authorized as of the
date and year first above written.
GLOBAL TELESYSTEMS LTD.
By:________________________________
Name:
Title:
DEUTSCHE BANK AG, NEW YORK
BRANCH, as a Lead Agent and as
Administrative Agent
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE, acting through one or more
of its branches, agencies or affiliates,
as a Lead Agent, as Syndication Agent,
as Documentation Agent and as Issuing Bank
By:________________________________
Name:
Title:
GT LANDING CORP.
By:________________________________
Name:
Title:
GT U.K. LTD.
By:________________________________
Name:
Title:
CIBC INC.
By:________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Director, CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp.,
as Agent
DEUTSCHE BANK AG, NEW YORK
BRANCH AND/OR CAYMAN ISLANDS BRANCH
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
BERLINER BANK
AKTIENGESELLSCHAFT
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
BANK OF MONTREAL
By:________________________________
Name:
Title:
BHF-BANK AKTIENGESELLSCHAFT
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
LANDESBANK HESSEN-THURINGEN GIROZENTRALE
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
INDUSTRIAL BANK OF JAPAN, LTD.
By:________________________________
Name:
Title:
METROPOLITAN LIFE INSURANCE
COMPANY
By:________________________________
Name:
Title:
KZH-SOLEIL CORPORATION
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
NATIONAL CITY BANK
By:________________________________
Name:
Title:
BANK OF SCOTLAND
By:________________________________
Name:
Title:
CREDITANSTALT-BANKVEREIN
By:________________________________
Name:
Title:
DE NATIONALE INVESTERINGS-
BANK, N.V.
By:________________________________
Name:
Title:
THE MITSUBISHI TRUST AND
BANKING CORPORATION
By:________________________________
Name:
Title:
SOUTHERN PACIFIC BANK
By:________________________________
Name:
Title:
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By:________________________________
Name:
Title:
THE TOYO TRUST & BANKING
COMPANY, LTD.
By:________________________________
Name:
Title:
PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By:________________________________
Name:
Title:
GULF INTERNATIONAL BANK B.S.C.
By:________________________________
Name:
Title:
KZH HOLDING CORPORATION III
By:________________________________
Name:
Title:
WESTDEUTSCHE LANDESBANK
GIROZENTRALE
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
BANK BRUSSELS ▇▇▇▇▇▇▇, NEW
YORK BRANCH
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
ANNEX I
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SCHEDULE 2.01 (COMMITMENTS)
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ANNEX II
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SCHEDULE 2.09 (AMORTIZATION SCHEDULE)
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ANNEX III
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SCHEDULE 3.05(a) (BORROWER CAPITAL STRUCTURE)
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ANNEX IV
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SCHEDULE 3.05(b) (SUBSIDIARIES)
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ANNEX V
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SCHEDULE 3.17 (COLLATERAL FILINGS)
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ANNEX VI
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EXHIBIT L (FORM OF PRE-APPROVED CAPACITY SALES AGREEMENT)
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ANNEX VII
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OA&M AGREEMENT AMENDMENT
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ANNEX VIII
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SUPPLY CONTRACT AMENDMENT
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ANNEX IX
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CAPITAL BUDGET
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ANNEX X
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TYCO INTERNATIONAL GUARANTY
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