EXHIBIT 10.7(c)
AMENDMENT XX. 0 XXX XXXXXX
XXXXXXXXX XX. 0 XXX XXXXXX, dated as of December 11, 200l (this
"Amendment"), to the Credit Agreement, dated as of August 17, 1999, as amended
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by Amendment No. 1, dated as of April 20, 2000, and Amendment No. 2 and Waiver,
dated as of September 29, 2000 (the "Credit Apreement"), among INFONET SERVICES
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CORPORATION, a Delaware corporation (the "Borrower"), the several banks and
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other financial institutions or entities from time to time parties thereto (the
"Lenders"), XXXXXXX XXXXX & CO., as lead arranger, book manager and syndication
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agent (in such capacity, the "Arranper"), THE BANK OF NOVA SCOTIA, as
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administrative agent (in such capacity, the "Administrative Agent") and SOCIETE
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GENERALE, as documentation agent (in such capacity, the "Documumentation
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Agent").
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W I T N E S S E T H:
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WHEREAS, the Borrower has requested the Lenders to consent to amend
the Credit Agreement as hereinafter set forth; and
WHEREAS, the Administrative Agent and the Lenders are willing to
consent to the requested amendments on and subject to the terms and conditions
contained herein;
NOW THEREFORE, in consideration of the premises and mutual covenants
hereinafter set forth, the parties agree as follows:
I Definitions. Unless otherwise defined herein, terms defined in the
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Credit Agreement are used herein as therein defined.
II Amendments to Credit Apreement.
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2.1 Section 1. The definition of "Cash Equivalents" is hereby
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amended to (i) delete the word "and" at the end of clause (f) thereof, (ii)
delete the period at the end of clause (g) thereof and replace such period with
a semicolon followed by the word "and", and (iii) add the following new clause
(h) at the end of clause (g) thereof:
"and (h) other investments consistent with the Borrower's
investment policy attached to Amendment No. 3 and Waiver dated as
of December 11, 200l; provided, that, if the Borrower or any of
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its Subsidiaries shall acquire any of such investments having a
maturity more than one year after the date of acquisition
thereof, then, so long as the Borrower or such Subsidiary, as the
case may be, holds such investments the Borrower and its
Subsidiaries will hold cash and Cash Equivalents (having a
maturity of not more than one year after the date of acquisition
thereof) in an aggregate amount not less than the sum of the
aggregate amount of Term Loans outstanding plus the Total
Revolving Credit Commitments then in effect."
2.2 Section 2.10. Section 2.10(b) of the Credit Agreement is
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hereby amended by inserting the following sentence at the end of such Section:
"In addition, unless the Required Prepayment Lenders otherwise
agree, if during any fiscal quarter the Borrower shall make
Restricted Payments pursuant to exception (i) in Section 7.6, the
Borrower shall prepay the Term Loans in an amount equal to 50% of
the amount of such Restricted Payments (each such prepayment to
be made as promptly after the end of each fiscal quarter in which
such Restricted Payments were made as will be consistent with
avoiding making prepayments on Term Loans that are Eurodollar
Loans on a date other than the last day of an Interest Period
with respect thereto)."
2.3 Section 7.3. Section 7.3(g) of the Credit Agreement is
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hereby amended by inserting the following clause at the end of such Section:
"and Hedge Agreements entered into by the Borrower pursuant to
Section 7.15 relating to the Indebtedness permitted by Section
7.2(c);"
2.4 Section 7.6. Section 7.6 of the Credit Agreement is hereby
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amended by (a) deleting exception (i) of such Section and substituting in lieu
thereof the following clause:
"(i) if at the time and after giving effect thereto no Default or
Event of Default shall have occurred and be continuing, the
Borrower or any of its Subsidiaries may make any such Restricted
Payments, provided that the sum of such Restricted Payments shall
not exceed $100,000,000 in the aggregate while this Agreement is
in effect and that no proceeds of the Revolving Credit Loans may
be used for such purposes,"
and (b) adding a new clause (iii) to the end of such Section to read as follows:
"and (iii) the Borrower may acquire Capital Stock in exchange for
its Capital Stock."
2.5 Section 7.8. Section 7.8(m) of the Credit Agreement is hereby
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amended by deleting "on or prior to October 6; 2001" in line 1 and by deleting
"$l0,000,000" in line 2 and substituting in lieu thereof "$20,000,000".
2.6 Section 7.17. Section 7.17 of the Credit Agreement is hereby
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amended by deleting "$10,000,000" in the final line of such Section and
substituting in lieu thereof "$20,000,000".
III Waiver. The Lenders hereby waive any violation of Section 7.8 of the
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Credit Agreement which may have occurred prior to the date of this Amendment as
a result of Investments which complied with the Borrower's investment policy
attached hereto but which were not Cash Equivalents under the Credit Agreement
as in effect prior to the date of this Amendment.
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IV Conditions Precedent. This Amendment shall become effective as of the
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date hereof when each of the conditions precedent set forth below shall have
been fulfilled (the date such conditions are fulfilled, the "Amendment Effective
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Date"):
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4.1 Amendment. The Administrative Agent shall have received this
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Amendment, executed and delivered by a duly authorized officer of each of the
Loan Parties and the Required Lenders.
4.2 No Default or Event of Default. On and as of this Amendment
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Effective Date and after giving effect to this Amendment and the transactions
contemplated hereby, no Default or Event of Default shall have occurred and be
continuing.
4.3 Representation and Warranties. The representations and
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warranties made by each Loan Party in each Loan Document to which it is a party
and herein after giving effect to this Amendment and the transactions
contemplated hereby shall be true and correct in all material respects on and as
of the Amendment Effective Date, after giving effect to this Amendment, as if
made on such date, except where such representations and warranties relate to an
earlier date in which case such representations and warranties shall be true and
correct as of such earlier date.
V General.
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5.1 Representation and Warranties. The Borrower represents and
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warrants to each Lender and the Administrative Agent as follows:
(a) Corporate Power: Authorization; Enforceable Obligations.
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(i) Each Loan Party has the corporate power and
authority, and the legal right, to make and deliver this Amendment and
to perform the Loan Documents to which it is a party, as amended by
this Amendment, and has taken all necessary corporate action to
authorize the execution, delivery and performance of this Amendment
and the performance of such Loan Documents, as so amended.
(ii) No consent or authorization of, approval by,
notice to, filing with or other act by or in respect of, any
governmental authority or any other Person is required in connection
with the execution and delivery of this Amendment to which any Loan
Party is a party or with the performance, validity or enforceability
of the Loan Documents to which it is a party, as amended by this
Amendment.
(iii) This Amendment has been duly executed and
delivered on behalf of each of the Loan Parties party hereto.
(iv) This Amendment and each Loan Document to which a
Loan Party is a party, as amended by this Amendment, constitutes a
legal, valid and binding obligation of such Loan Party enforceable
against such Loan Party in accordance with its terms, except as
affected by bankruptcy, insolvency,
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fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting the enforcement of creditors' rights
generally, general equitable principles (whether considered a
proceeding in equity or at law) and an implied covenant of good faith
and fair dealing.
(b) No Legal Bar. The execution, delivery and performance
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of this Amendment and the performance of the Loan Documents to which each
Loan Party is a party, as amended by this Amendment, will not violate any
Requirement of Law or contractual obligation of any Loan Party or of any of
their Subsidiaries and will not result in, or require, the creation or
imposition of any Lien on any of its or their respective properties or
revenues pursuant to any such Requirement of Law or contractual obligation.
(c) Representations and Warranties in Loan Documents. The
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representations and warranties set forth in each Loan Document are, after
giving effect to this Amendment, true and correct in all material respects
as if made on and as of this Amendment Effective Date, except as they may
specifically relate to an earlier date.
5.2 Continuing Effect of Credit Agreement. This Amendment shall
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not constitute an amendment or waiver of any provision of the Credit Agreement
not expressly referred to herein and shall not be construed as an amendment,
waiver or consent to any action on the part of any party hereto that would
require an amendment, waiver or consent of the Administrative Agent or the
Lenders except as expressly stated herein. Except as expressly waived or amended
hereby, the provisions of the Credit Agreement are and shall remain in full
force and effect.
5.3 Affirmation of Security Documents. Each of the Parties
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hereto agrees that the execution and delivery of this Amendment and the
performance of the Credit Agreement shall not in any way affect such Person's
obligations under any Security Document to which such Person is a party, which
obligations on the date hereof remain absolute and unconditional and are not
subject to any defense, set-off or counterclaim.
5.4 Expenses. The Borrower agrees to pay or reimburse the
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Administrative Agent for all of its reasonable out-of-pocket costs and expenses
incurred in connection with (a) the negotiation, preparation, execution and
delivery of this Amendment and any other documents prepared in connection
herewith, and consummation of the transactions contemplated hereby and thereby,
including the fees and expenses of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to the
Administrative Agent, and (b) the enforcement or preservation of any rights
under this Amendment and any other such documents.
5.5 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
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CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
5.6 Counterparts. This Amendment may be executed in any number
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of counterparts by the parties hereto, each of which counterparts when so
executed shall be an original, but all counterparts taken together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective duly authorized officers as
of the day and year first above written.
INFONET SERVICES CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President, Chief Financial
Officer, Treasurer
IINS, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President, Chief Financial
Officer, Treasurer
ESG COMMUNICATIONS INCORPORATED
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President, Chief Financial
Officer, Treasurer
INFONET BROADBAND SERVICES CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President, Chief Financial
Officer, Treasurer
XXXXXXX XXXXX & CO., as Lead Arranger,
Book Manager and Syndication Agent
By:______________________________________
Name:
Title:
XXXXXXX XXXXX CAPITAL CORPORATION,
as lender
By:______________________________________
Name:
Title:
S-1
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective duly authorized
officers as of the day and year first above written.
INFONET SERVICES CORPORATION
By: ____________________________________
Name:
Title:
IINS, INC.
By: ____________________________________
Name:
Title:
ESG COMMUNICATIONS INCORPORATED
By: ____________________________________
Name:
Title:
INFONET BROADBAND SERVICES CORPORATION
By: ____________________________________
Name:
Title:
XXXXXXX XXXXX & CO., as Lead Arranger,
Book Manager and Syndication Agent
By: /s/ Xxxxxx XxXxxxxxxxxx
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Name: Xxxxxx XxXxxxxxxxxx
Title: Director
S-1
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective duly authorized oficers as of
the day and year first above written.
INFONET SERVICES CORPORATION
By: ______________________________
Name:
Title:
KFW
KREDITANSTALT FUR WIEDERAUFBAU
Date: 18.12.2001 IINS, INC.
By: /s/ Xx. Xxxxxxx /s/ Xx. Xxxxxx By: ______________________________
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Name: Xx. Xxxxxxxx Xx. Xxxxxx Name:
Title:
Title: Vice President Sen. Project Manager
ESG COMMUNICATIONS INCORPORATED
By: ______________________________
Name:
Title:
INFONET BROADBAND SERVICES
CORPORATION
By: ______________________________
Name:
Title:
XXXXXXX XXXXX & CO., as Lead
Arranger, Book Manager and
Syndication Agent
By: ______________________________
Name:
Title:
X-x
XXXXXXX XXXXX CAPITAL CORPORATION,
as Lender
By:________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA, as a Lender and
as Administrative Agent
By: /s/ Xxxxxxx Xxxxxxxxxx
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Name: XXXXXXX X. XXXXXXXXXX, XX.
Title: AUTHORIZED SIGNATORY
S-2
ABN AMRO BANK N.V.
By: /s/ Xxxxx X. Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
Title: Group Vice President
By: /s/ Xxxxxx Xxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxx
Title: Assistant Vice President
S-1
THE FUJI BANK, Ltd.
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: Senior Vice President
S-13
UBS AG, Stamford Branch
By: /s/ Xxxxxxx X. Saint
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Name: Xxxxxxx X. Saint
Title: Associate Director
Banking Products
Services, US
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Director
Banking Products Services, US
S-1
XXXXXX COMMERCIAL PAPER, INC.
By: /s/ G. Xxxxxx Xxxxx
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Name: G. Xxxxxx Xxxxx
Title: Authorized Signatory
S-1
IBM Credit Corporation
By: /s/ Xxxxxx X Xxxxxx
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Name: Xxxxxx X Xxxxxx
Title: Manager of Credit
S-2
Societe Generale,
As Documentation Agent and as Lender
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Director
S-3
XXXXXXX XXXXX CAPITAL CORPORATION,
as Lender
By: /s/ Xxxxxx X Xxxxxx
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Name: Xxxxxx X Xxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA, as a Lender and
as Administrative Agent
By: _________________________________
Name:
Title:
S-2
IKB Deutsche Industriebank AG
Luxembourg Branch
By: /s/ Xxx Xxxxxxxxx /s/ Keuchel
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Name: Xxx Xxxxxxxxx
Title: Assistant Director Xxxx Xxxxxxx
Manager
Infonet Amendment No. 3 and Waiver
PILGRIM PRIME RATE TRUST
By: ING Pilgrim Investments, LLC
as its investment manager
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx, CFA
Title: Vice President
NIB CAPITAL BANK NV
By: /s/ X. Xxxxx /s/ X. X. Volkeda
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Name: E. Xxxxx X. X. Volkeda
Title:
S-1
