JOINDER AGREEMENT
EXHIBIT
10.68
This
Joinder Agreement (the “Agreement”)
is
dated as of the Effective Date set forth below and is entered into by and
between SUNTRUST BANK (the “New
Lender”)
and
SOCIETE GENERALE, in its capacity as Administrative Agent (the “Administrative
Agent”)
for the
Lenders (as hereinafter defined) under the Credit Agreement (as hereinafter
defined). Capitalized terms used but not defined herein shall have the meanings
given to them in the Credit Agreement, receipt of a copy of which is hereby
acknowledged by the New Lender. The Standard Terms and Conditions (“Standard
Terms and Conditions”)
set
forth in Annex 1 attached hereto are hereby agreed to and incorporated herein
by
reference and made a part of this Agreement as if set forth herein in
full.
Pursuant
to Section 2.15(c) of the Credit Agreement, the New Lender hereby becomes a
Lender, subject to and in accordance with the Standard Terms and Conditions
and
the Credit Agreement, as of the Effective Date set forth below, with respect
to
the New Loan Commitment identified below.
1.
|
New
Lender:
|
SunTrust
Bank
|
2.
|
Borrower:
|
ABOVENET
COMMUNICATIONS, INC., a Delaware corporation (the “Borrower
Representative”)
and such other persons named under, or joined to, the Credit Agreement
as
a Borrower from time to time
|
3.
|
Administrative
Agent:
|
SOCIETE
GENERALE, as Administrative Agent under the Credit
Agreement
|
4.
|
Credit
Agreement:
|
Credit
and Guaranty Agreement, dated as of February 29, 2008 (as the same
may be
amended, restated, supplemented, modified, renewed, refinanced, extended
or otherwise modified from time to time), by and among the Borrowers,
the
Guarantors from time to time party thereto, the financial institutions
named therein as Lenders (the “Lenders”
and each, a “Lender”)
and the Administrative Agent.
|
5.
|
New
Loan Commitment:
|
$30,000,000,
in aggregate, to be allocated on a pro rata basis as shown in the
following tables.
|
A.
Revolving Commitments
Lender
|
Amount
|
Percentage
|
Societe
Generale
|
$10,500,000
|
38.889%
|
CIT
Lending Services Corporation
|
$
7,500,000
|
27.778%
|
SunTrust
Bank
|
$
9,000,000
|
33.333%
|
TOTAL
|
$27,000,000
|
100.000%
|
B.
Term Loan Commitments
Lender
|
Amount
|
Percentage
|
Societe
Generale
|
$14,000,000
|
38.889%
|
CIT
Lending Services Corporation
|
$10,000,000
|
27.778%
|
SunTrust
Bank
|
$12,000,000
|
33.333%
|
TOTAL
|
$36,000,000
|
100.000%
|
C.
Delayed Draw Commitments
Lender
|
Amount
|
Percentage
|
Societe
Generale
|
$10,500,000
|
38.889%
|
CIT
Lending Services Corporation
|
$
7,500,000
|
27.778%
|
SunTrust
Bank
|
$
9,000,000
|
33.333%
|
TOTAL
|
$27,000,000
|
100.000%
|
Effective
Date: October 1, 2008 [TO BE INSERTED BY ADMINISTRATIVE AGENT.]
The
terms
set forth in this Agreement are hereby agreed to by the undersigned as of the
Effective Date:
SUNTRUST
BANK
By:
/s/
Xxxxxxx
Xxxxxx
Title:
Vice President
SOCIETE
GENERALE,
as
Administrative
Agent
By:
/s/
Xxxxxx
Xxxxxx
Title:
Managing Agent
Consented
to:
ABOVENET
COMMUNICATIONS, INC.,
as
Borrower Representative
By:
/s/
Xxxxxx
Xxxxxx
Title:
SVP and General Counsel
ANNEX
1
STANDARD
TERMS AND CONDITIONS
1.
|
Representations
and Warranties.
|
The
New
Lender (a) represents and warrants that (i) it has full power and authority,
and
has taken all action necessary, to execute and deliver this Agreement and to
consummate the transactions contemplated hereby and to become a Lender under
the
Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under
the Credit Agreement, (iii) from and after the Effective Date, it shall be
bound
by the provisions of the Credit Agreement and, to the extent of the New Loan
Commitment, shall have the obligations of a Lender thereunder and (iv) it has
received a copy of the Credit Agreement and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into this Agreement and to undertake the New Loan Commitment on the basis
of which it has made such analysis and decision, and (v) if it is a Non-U.S.
Lender, attached to the Agreement is any documentation required to be delivered
by it pursuant to the terms of the Credit Agreement, duly completed and executed
by the New Lender; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at that time, continue
to
make its own credit decisions in taking or not taking action under the Loan
Documents, (ii) it will perform in accordance with the obligations which by
the
terms of the Loan Documents are required to be performed by it as a Lender;
and
(iii) it will comply with the provisions of Section 3.01 of the Credit Agreement
and attached are the forms prescribed by the Internal Revenue Service of the
United States certifying as to the New Lender’s status for purposes of
determining exemption from United States withholding taxes with respect to
all
payments to be made to the New Lender under the Credit Agreement or such other
documents as are necessary to indicate that all such payments are subject to
such rates at a rate reduced by an applicable tax treaty.
2.
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General
Provisions. This
Agreement shall be binding upon, and inure to the benefit of, the
parties
hereto and their respective successors and assigns. This Agreement
may be
executed in any number of counterparts, which together shall constitute
one instrument. Delivery of an executed counterpart of a signature
page of
this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement. This Agreement shall be governed
by, and construed in accordance with, the internal laws of the State
of
New York without regard to conflict of laws principles thereof. The
effective date of this Agreement (the “Effective
Date”)
shall be the latest of (a) the date of the execution hereof by the
Administrative Agent, the New Lender and the Borrower Representative,
(b)
the delivery by the New Lender to the Administrative Agent of an
Administrative Questionnaire, (c) the payment by the Borrower to
the Administrative Agent for the Administrative Agent’s sole and separate
account
an
advisory fee in accordance with the May 1, 2008 engagement letter
and (d)
October 1, 2008.
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