Amendment No. 3 and Waiver to Credit Agreement among Infonet Services Corporation, Lenders, and Agents (12/11/2001)

Summary

This amendment updates the existing Credit Agreement dated August 17, 1999, between Infonet Services Corporation, several lenders, Merrill Lynch & Co., The Bank of Nova Scotia, and Societe Generale. It modifies definitions, payment terms, and investment limits, and waives certain past violations related to investments. The amendment becomes effective once all parties sign and confirm no defaults exist. The Borrower affirms its authority to enter into this amendment and that all representations remain accurate.

EX-10.7(C) 4 dex107c.txt AMENDMENT NO.3 AND WAIVER DATED 12/11/2001 EXHIBIT 10.7(c) AMENDMENT NO. 3 AND WAIVER AMENDMENT NO. 3 AND WAIVER, dated as of December 11, 200l (this "Amendment"), to the Credit Agreement, dated as of August 17, 1999, as amended --------- 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 ---------------- CORPORATION, a Delaware corporation (the "Borrower"), the several banks and -------- other financial institutions or entities from time to time parties thereto (the "Lenders"), MERRILL LYNCH & CO., as lead arranger, book manager and syndication ------- agent (in such capacity, the "Arranper"), THE BANK OF NOVA SCOTIA, as -------- administrative agent (in such capacity, the "Administrative Agent") and SOCIETE -------------------- GENERALE, as documentation agent (in such capacity, the "Documumentation --------------- Agent"). - ----- W I T N E S S E T H: - - - - - - - - - - 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 ----------- Credit Agreement are used herein as therein defined. II Amendments to Credit Apreement. ------------------------------ 2.1 Section 1. The definition of "Cash Equivalents" is hereby --------- 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 -------- 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 ------------ 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 ----------- 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 ----------- 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 $100,000,000 in the aggregate while this Agreement is in effect and that no proceeds of the Revolving Credit Loans may be used for such purposes," and (b) adding a new clause (iii) to the end of such Section to read as follows: "and (iii) the Borrower may acquire Capital Stock in exchange for its Capital Stock." 2.5 Section 7.8. Section 7.8(m) of the Credit Agreement is hereby ----------- amended by deleting "on or prior to October 6; 2001" in line 1 and by deleting "$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 ------------ 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 ------ 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. 2 IV Conditions Precedent. This Amendment shall become effective as of the -------------------- date hereof when each of the conditions precedent set forth below shall have been fulfilled (the date such conditions are fulfilled, the "Amendment Effective ------------------- Date"): - ---- 4.1 Amendment. The Administrative Agent shall have received this --------- 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 ------------------------------ 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 ----------------------------- 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. ------- 5.1 Representation and Warranties. The Borrower represents and ----------------------------- warrants to each Lender and the Administrative Agent as follows: (a) Corporate Power: Authorization; Enforceable Obligations. ------------------------------------------------------- (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, 3 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 ------------ 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 ------------------------------------------------ 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 ------------------------------------- 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 --------------------------------- 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 -------- 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 Simpson Thacher & Bartlett, 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 ------------- 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 ------------ 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. 4 / 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/ Akbar H. Firdosy ------------------------------------- Name: Akbar H. Firdosy Title: Vice President, Chief Financial Officer, Treasurer IINS, INC. By: /s/ Akbar H. Firdosy ------------------------------------- Name: Akbar H. Firdosy Title: Vice President, Chief Financial Officer, Treasurer ESG COMMUNICATIONS INCORPORATED By: /s/ Akbar H. Firdosy ------------------------------------- Name: Akbar H. Firdosy Title: Vice President, Chief Financial Officer, Treasurer INFONET BROADBAND SERVICES CORPORATION By: /s/ Akbar H. Firdosy ------------------------------------- Name: Akbar H. Firdosy Title: Vice President, Chief Financial Officer, Treasurer MERRILL LYNCH & CO., as Lead Arranger, Book Manager and Syndication Agent By:______________________________________ Name: Title: MERRILL LYNCH 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: MERRILL LYNCH & CO., as Lead Arranger, Book Manager and Syndication Agent By: /s/ Sheila McGillicuddy ------------------------------------ Name: Sheila McGillicuddy 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/ Mr. Bellman /s/ Mr. Wagner By: ______________________________ ---------------------------------- Name: Mr. Bellmann Mr. Wagner Name: Title: Title: Vice President Sen. Project Manager ESG COMMUNICATIONS INCORPORATED By: ______________________________ Name: Title: INFONET BROADBAND SERVICES CORPORATION By: ______________________________ Name: Title: MERRILL LYNCH & CO., as Lead Arranger, Book Manager and Syndication Agent By: ______________________________ Name: Title: S-l MERRILL LYNCH CAPITAL CORPORATION, as Lender By:________________________________ Name: Title: THE BANK OF NOVA SCOTIA, as a Lender and as Administrative Agent By: /s/ Vincent Fitzgerald --------------------------------- Name: VINCENT I. FITZGERALD, JR. Title: AUTHORIZED SIGNATORY S-2 ABN AMRO BANK N.V. By: /s/ David C. Carrington --------------------------- Name: David C. Carrington Title: Group Vice President By: /s/ Shilpa Parandekar --------------------------- Name: Shilpa Parandekar Title: Assistant Vice President S-1 THE FUJI BANK, Ltd. By: /s/ Masahito Fukuda --------------------------- Name: Masahito Fukuda Title: Senior Vice President S-13 UBS AG, Stamford Branch By: /s/ Wilfred V. Saint --------------------------- Name: Wilfred V. Saint Title: Associate Director Banking Products Services, US By: /s/ Thomas R. Salzano --------------------------- Name: Thomas R. Salzano Title: Director Banking Products Services, US S-1 LEHMAN COMMERCIAL PAPER, INC. By: /s/ G. Andrew Keith ---------------------------- Name: G. Andrew Keith Title: Authorized Signatory S-1 IBM Credit Corporation By: /s/ Thomas S Curcio ---------------------------- Name: Thomas S Curcio Title: Manager of Credit S-2 Societe Generale, As Documentation Agent and as Lender By: /s/ Mark Vigil --------------------------- Name: Mark Vigil Title: Director S-3 MERRILL LYNCH CAPITAL CORPORATION, as Lender By: /s/ Howard B Sysler ---------------------------------- Name: Howard B Sysler 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/ Ana Bohorquez /s/ Keuchel ------------------------------------ Name: Ana Bohorquez Title: Assistant Director Anja Keuchel Manager Infonet Amendment No. 3 and Waiver PILGRIM PRIME RATE TRUST By: ING Pilgrim Investments, LLC as its investment manager By: /s/ Mark F. Haak ----------------------------- Name: Mark F. Haak, CFA Title: Vice President NIB CAPITAL BANK NV By: /s/ E. Jager /s/ B. J. Volkeda ------------------------------------ Name: E. Jager B. J. Volkeda Title: S-1