EXHIBIT 10.28
CONSENT AND AMENDMENT NO. 6
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CONSENT AND AMENDMENT NO. 6, dated as of January 21, 2000 (this
"Consent and Amendment"), to Amended and Restated Credit Agreement, dated as of
June 21, 1999 (as amended by Amendment No. 1 thereto, dated as of July 1, 1999,
Amendment No. 2 thereto, dated as of August 12, 1999, Amendment No. 3 thereto,
dated as of September 24, 1999, Amendment No. 4 thereto, dated as of December
1, 1999 and Amendment No. 5 thereto, dated as of December 15, 1999, the "Credit
Agreement"), by and among IPC Information Systems, Inc., as Parent Borrower, IPC
Funding Corp., as Sub Borrower, IPC Communications, Inc., as a Loan Party, the
Lenders signatory thereto, as Lenders, General Electric Capital Corporation, as
Issuing Bank, Collateral Agent and Administrative Agent, and First Union Capital
Markets, Inc., as Documentation Agent.
PRELIMINARY STATEMENTS
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A. International Exchange Networks, Ltd., a Delaware corporation
("IXnet") and an indirect Subsidiary of the Parent Borrower, desires to acquire
all of the outstanding shares of capital stock (the "Acquisition") of System
Programming and Network Computing, Inc., a Delaware corporation ("SPNC"), from
Xxxx Xxxxxx ("Xxxxxx") for an aggregate purchase price consisting of (1)
$300,000 in cash, (2) a promissory note to Xxxxxx in the original principal
amount of $100,000 (the "Xxxxxx Note") and (3) 6,080 shares of common stock of
IXnet, Inc., a Delaware corporation ("IXnet Holdings") and the direct parent of
IXnet, pursuant to the Stock Purchase Agreement by and among SPNC, IXnet and
Xxxxxx, dated as of January 21, 2000 (the "Stock Purchase Agreement").
B. Section 5.02(f)(vii) of the Credit Agreement permits the Parent
Borrower and its Subsidiaries to make certain Investments, subject to the
satisfaction of certain conditions specified therein.
C. Section 5.02(g) of the Credit Agreement prohibits the Parent
Borrower and its Subsidiaries from issuing any shares of capital stock, subject
to certain exceptions specified therein.
D. Section 5.02(b)(iii)(B) of the Credit Agreement permits the Parent
Borrower and its Subsidiaries to incur Debt in connection with certain permitted
Investments, subject to the satisfaction of certain conditions specified
therein.
E. The Borrowers have requested that the Lenders amend Section
5.02(g) of the Credit Agreement as set forth herein.
F. The Lenders are willing to consent to the Acquisition and certain
related matters and to amend the Credit Agreement on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
1. Definitions. The terms defined in the Credit Agreement and not otherwise
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defined herein shall have the meanings ascribed to them in the Credit Agreement.
2. Consent. Subject to the satisfaction of the conditions set forth in Section
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4 hereof:
2.1. Notwithstanding the conditions set forth in clauses (2) and (4) of
Section 5.02(f)(vii) of the Credit Agreement, but subject to the satisfaction of
all other conditions set forth in Section 5.02(f)(vii) and to the compliance
with all other terms and conditions set forth in this Consent and Amendment and
the Credit Agreement (including without limitation, Section 5.01(o) of the
Credit Agreement), the Lenders hereby consent to the Acquisition.
2.2. Notwithstanding the provisions of Section 5.02(g) of the Credit
Agreement, but subject to the compliance with all other terms and conditions set
forth in this Consent and Amendment and the Credit Agreement, the Lenders
consent to (a) the issuance of 6,080 shares of common stock of IXnet Holdings as
part of the consideration for the Acquisition under the Stock Purchase Agreement
and (b) the issuance of 22,080 restricted shares of common stock of IXnet
Holdings to Xxxxxx pursuant to the Restricted Stock Agreement, dated as of
January __, 2000, between IXnet and Xxxxxx.
2.3. Notwithstanding the provision of Section 5.02(b)(iii)(B) of the Credit
Agreement that any Debt issued or incurred to finance an acquisition under
Section 5.02(f)(vii) be Subordinated Debt, but subject to the compliance with
all other provisions set forth in Section 5.02(b)(iii)(B) and all other terms
and conditions set forth in this Consent and Amendment and the Credit Agreement,
the Lenders consent to the issuance of the Xxxxxx Note as part of the
consideration for the Acquisition under the Stock Purchase Agreement.
2.4. Each of the foregoing consents is only applicable and shall only be
effective in the specific instance and for the specific purpose for which made.
Each consent is expressly limited to the facts and circumstances referred to
herein and shall not operate (i) as a waiver of or consent to non-compliance
with any other Section or provision of the Credit Agreement or any other Loan
Document, (ii) as a waiver of any other right, power or remedy of either the
Administrative Agent or any Lender Party under the Credit Agreement or any other
Loan Document or (iii) as a waiver of or consent to any Default or Event of
Default under the Credit Agreement or any other Loan Document.
3. Amendment. Section 5.02(g) of the Credit Agreement is amended by deleting
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from clause (iii)(D) the words "twelve and six tenths percent (12.6%)" and
replacing them with the words "fourteen percent (14%)".
4. Conditions to Consent and Amendment. The effectiveness of the consents
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contained in Section 2 and the amendment contained in Section 3 shall be subject
to the fulfillment of the condition precedent that the Borrowers, Holdings, the
Administrative Agent and the Required Lenders shall have executed and delivered
this Consent and Amendment to the Administrative Agent.
5. Reference to and Effect Upon the Credit Agreement and other Loan Documents.
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Except as specifically amended hereby, the Credit Agreement, the Notes and each
other Loan Document shall remain in full force and effect and each is hereby
ratified and confirmed. Each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or any
other word or words of similar import shall mean and be a reference to the
Credit Agreement as amended hereby, and each reference in any other Loan
Document to the Credit Agreement or any word or words of similar import shall be
and mean a reference to the Credit Agreement as amended hereby.
6. Miscellaneous.
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6.1. Governing Law. This Consent and Amendment shall be governed and
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construed in accordance with the laws of the State of New York.
6.2. Counterparts. This Consent and Amendment may be signed in any number
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of counterparts with the same effect as if the signatures thereto and hereto
were upon the same instrument. Delivery of an executed signature page to this
Consent and Amendment by facsimile shall be as effective as delivery of an
original executed signature page.
6.3. Binding Effect; Assignment. This Consent and Amendment shall be
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binding upon and inure to the benefit of the Borrowers and its respective
successors and to the benefit of the Administrative Agent and the Lenders and
their respective successors and assigns.
6.4. Fees and Expenses. The Borrowers shall pay the Administrative Agent
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for all reasonable expenses, including reasonable fees of legal counsel,
incurred by the Administrative Agent in connection with the preparation,
negotiation and execution of this Consent and Amendment and any related matters.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, this Consent and Amendment has been duly executed
as of the date first written above.
IPC INFORMATION SYSTEMS, INC.,
as Parent Borrower
By: __________________________
Title:________________________
IPC FUNDING CORP.,
as Sub Borrower
By:___________________________
Title:________________________
IPC COMMUNICATIONS, INC.,
as a Loan Party
By:___________________________
Title:________________________
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent, Collateral Agent,
Issuing Bank and Lender
By:___________________________
Title:________________________
FIRST UNION NATIONAL BANK,
as a Lender
By: __________________________
Title: _______________________
GMAC COMMERCIAL CREDIT LLC,
as a Lender
By: __________________________
Title: _______________________
The undersigned hereby acknowledges and consents to this Consent and
Amendment No. 6 and hereby ratifies and confirms the Guaranty and each other
Loan Document to which it is a party.
INTERNATIONAL EXCHANGE NETWORKS,
LTD., as a Guarantor
By: ___________________________
Title:_________________________
The undersigned hereby acknowledges and consents to this Consent and
Amendment No. 6 and hereby ratifies and confirms the Guaranty and each other
Loan Document to which it is a party.
INTERNATIONAL EXCHANGE NETWORK
CORP., as a Guarantor
By: __________________________
Title:________________________
The undersigned hereby acknowledges and consents to this Consent and
Amendment No. 6 and hereby ratifies and confirms the Guaranty and each other
Loan Document to which it is a party.
HNG CORP., as a Guarantor
By: __________________________
Title:________________________
The undersigned hereby acknowledges and consents to this Consent and
Amendment No. 6 and hereby ratifies and confirms the Guaranty and each other
Loan Document to which it is a party.
V BAND CORPORATION, as a Guarantor
By: __________________________
Title:________________________
The undersigned hereby acknowledges and consents to this Consent and
Amendment No. 6 and hereby ratifies and confirms the Guaranty and each other
Loan Document to which it is a party.
IXNET, INC., as a Guarantor
By: __________________________
Title:________________________
The undersigned hereby acknowledges and consents to this Consent and
Amendment No. 6 and hereby ratifies and confirms the Guaranty and each other
Loan Document to which it is a party.
IPC INFORMATION SYSTEMS FAR EAST INC.,
as a Guarantor
By: __________________________
Title:________________________
The undersigned hereby acknowledges and consents to this Consent and
Amendment No. 6 and hereby ratifies and confirms the Guaranty and each other
Loan Document to which it is a party.
MXNET INC., as a Guarantor
By: __________________________
Title:________________________
The undersigned hereby acknowledges and consents to this Consent and
Amendment No. 6 and hereby ratifies and confirms the Guaranty and each other
Loan Document to which it is a party.
IPC INFORMATION SYSTEMS ASIA PACIFIC,
LIMITED, as a Guarantor
By: __________________________
Title:________________________
The undersigned hereby acknowledges and consents to this Consent and
Amendment No. 6 and hereby ratifies and confirms the Guaranty and each other
Loan Document to which it is a party.
IPC INFORMATION SYSTEMS CANADA, INC., as a
Guarantor
By: __________________________
Title:________________________
The undersigned hereby acknowledges and consents to this Consent and
Amendment No. 6 and hereby ratifies and confirms the Guaranty and each other
Loan Document to which it is a party.
IXNET UK LIMITED, as a Guarantor
By: __________________________
Title:________________________
The undersigned hereby acknowledges and consents to this Consent and
Amendment No. 6 and hereby ratifies and confirms the Guaranty and each other
Loan Document to which it is a party.
IPC INFORMATION SYSTEMS, as a Guarantor
By: __________________________
Title:________________________
The undersigned hereby acknowledges and consents to this Consent and
Amendment No. 6 and hereby ratifies and confirms the Guaranty and each other
Loan Document to which it is a party.
IPC UK HOLDINGS, LTD., as a Guarantor
By: __________________________
Title:________________________
The undersigned hereby acknowledges and consents to this Consent and
Amendment No. 6 and hereby ratifies and confirms the Guaranty and each other
Loan Document to which it is a party.
IPC UK SPC LIMITED, as a Guarantor
By: __________________________
Title:________________________
The undersigned hereby acknowledges and consents to this Consent and
Amendment No. 6 and hereby ratifies and confirms the Guaranty and each other
Loan Document to which it is a party.
SATURN GLOBAL NETWORK SERVICES HOLDINGS
LIMITED, as a Guarantor
By: __________________________
Title:________________________
The undersigned hereby acknowledges and consents to this Consent and
Amendment No. 6 and hereby ratifies and confirms the Guaranty and each other
Loan Document to which it is a party.
IXNET AUSTRALIA PTY LIMITED, as a Guarantor
By: __________________________
Title:________________________
The undersigned hereby acknowledges and consents to this Consent and
Amendment No. 6 and hereby ratifies and confirms the Guaranty and each other
Loan Document to which it is a party.
IXNET HONG KONG LIMITED (f/k/a Saturn Global
Network Services (Hong Kong) Limited), as a
Guarantor
By: __________________________
Title:________________________
The undersigned hereby acknowledges and consents to this Consent and
Amendment No. 6 and hereby ratifies and confirms the Guaranty and each other
Loan Document to which it is a party.
SATURN GLOBAL NETWORK SERVICES (JAPAN) LTD.,
as a Guarantor
By: __________________________
Title:________________________
The undersigned hereby acknowledges and consents to this Consent and
Amendment No. 6 and hereby ratifies and confirms the Guaranty and each other
Loan Document to which it is a party.
SATURN GLOBAL NETWORK SERVICES (SINGAPORE)
PTE LTD., as a Guarantor
By: __________________________
Title:________________________
The undersigned hereby acknowledges and consents to this Consent and
Amendment No. 6 and hereby ratifies and confirms the Guaranty and each other
Loan Document to which it is a party.
IPC FUNDING CORP, as a Guarantor
By: __________________________
Title:________________________
