Exhibit (b)(1)
US$ 6,000,000,000
SYNDICATED TERM LOAN FACILITY AGREEMENT
between
NTT COMMUNICATIONS CORPORATION
(as Borrower)
THE DAI-ICHI KANGYO BANK, LIMITED
THE FUJI BANK, LIMITED
(as Joint Arrangers)
THE DAI-ICHI KANGYO BANK, LIMITED
(as Facility Agent)
and
SEVERAL FINANCIAL INSTITUTIONS
(as Lenders)
CONTENTS
Clause Page
------ --------
1. DEFINITIONS.................................................. 1
2. PURPOSE...................................................... 2
3. RIGHTS AND OBLIGATIONS OF LENDERS............................ 3
4. DRAWDOWN..................................................... 3
5. CONDITIONS PRECEDENT......................................... 4
6. INTEREST PERIODS............................................. 4
7. INTEREST..................................................... 5
8. CANCELLATION OF COMMITMENTS.................................. 5
9. PAYMENT...................................................... 5
10. REPAYMENT.................................................... 6
11. PREPAYMENT................................................... 6
12. TAXES........................................................ 6
13. INCREASED COSTS.............................................. 6
14. MARKET DISRUPTION............................................ 6
15. REPRESENTATIONS AND WARRANTIES............................... 7
16. COVENANTS.................................................... 8
17. EVENTS OF DEFAULT............................................ 8
18. SET-OFF...................................................... 9
19. REDISTRIBUTION OF PAYMENTS................................... 9
20. INDEMNITIES.................................................. 9
21. FEES......................................................... 9
22. COSTS AND EXPENSES........................................... 9
23. STAMP DUTIES................................................. 10
24. THE FACILITY AGENT........................................... 10
25. NOTICES...................................................... 12
26. ASSIGNMENTS.................................................. 12
27. AMENDMENT OF AGREEMENT....................................... 12
28. MUTUAL CONSULTATION.......................................... 12
29. GOVERNING LAW................................................ 13
30. JURISDICTION................................................. 13
EXHIBIT A......................................................... 14
EXHIBIT B......................................................... 15
EXHIBIT C......................................................... 16
EXHIBIT D......................................................... 18
EXHIBIT E......................................................... 19
SIGNATORIES....................................................... 20
THIS AGREEMENT is dated 12th June 2000 and made
BETWEEN:
(1) NTT COMMUNICATIONS CORPORATION (the "Borrower");
(2) THE DAI-ICHI KANGYO BANK, LIMITED and THE FUJI BANK, LIMITED as Joint
Arrangers (the "Joint Arrangers");
(3) THE SEVERAL BANKS whose names appear in EXHIBIT A as Lenders
(individually a "Lender" and collectively "Lenders"); and
(4) THE DAI-ICHI KANGYO BANK, LIMITED as facility agent for the Lenders (in
this capacity the "Facility Agent").
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS
1.1 In this Agreement, the terms defined below have the following meanings:
(a) "Base Rate" means, in relation to an Interest Period, the offered
rate for deposits in US dollar displayed on the Telerate Page 3750
for the period comparable to such Interest Period at or about 11:00
a.m. London Time, on two London Banking Days prior to the first day
of the Interest Period; provided that the Base Rate shall be:
(i) if such Interest Period is less than one month, the
Interpolated Rate of Fed Fund Rate and Libor comparable to
one month;
(ii) if such Interest Period is more than one month and less than
two months, the Interpolated Rate of Libor comparable to one
month and Libor comparable to two months; and
(iii) if such Interest Period is more than two months and less than
three months, the Interpolated Rate of Libor comparable to
two months and Libor comparable to three months;
(b) "Borrowing" means all monetary obligations including obligations
arising from borrowing, sales, leases, guarantees and other
transactions and bonds, promissory notes and other transferable
instruments;
(c) "Business Day" means a day, other than a Saturday, Sunday or any
other day on which banks are not open for business in Tokyo or New
York City;
(d) "Commitment" in relation to a Lender means the amount set opposite
its name in EXHIBIT A (collectively the "Total Commitments") to the
extent not cancelled hereunder;
(e) "Encumbrance" means any lien, pledge, mortgage, assignment by way of
security, karitoki-tanpo, title retention and any other security;
(f) "Event of Default" means any of the events specified in Clause 17.1;
(g) "Expiration Date" means 31 March 2001 or, if it is not a Business
Day, the immediately preceding Business Day;
(h) "Fed Fund Rate" means the rate on overnight federal funds
transactions on the immediately preceding New York Banking Day
displayed on the Telerate Page 118 in the morning New York Time on
two New York Banking Days prior to the day on which the relevant
Interest Period commences or the day on which prepayment is made (as
the case may be);
(i) "Interest Period" means a period ascertained in accordance with
Clause 6;
(j) "Interpolated Rate" shall be computed in accordance with the
following formula set out in EXHIBIT D;
(k) "Libor" means, the offered rate for deposits in US dollar displayed
on the Telerate Page 3750 at or about 11:00 a.m. London Time, on two
London Banking Days prior to the day on which the relevant Interest
Period commences or the day on which prepayment is made (as the case
may be);
(l) "Loan" means the principal amount of a loan made in accordance with
each Notice of Drawdown or the principal amount thereof from time to
time outstanding;
(m) "London Banking Day" means a day, other than a Saturday, Sunday or
any other day on which banks are not open for business in London;
(n) "Majority Lenders" means the Lenders to whom more than 66 2/3
percent in aggregate of the Loans are owing or, in the event that no
Loans are outstanding, the Lenders whose Commitments aggregate more
than 66 2/3 percent of the Total Commitments;
(o) "Margin" means 0.125 percent per annum;
(p) "New York Banking Day" means a day, other than a Saturday, Sunday or
any other day on which banks are not open for business in New York
City;
(q) "Notice of Drawdown" means a notice substantially in the form set
out in EXHIBIT B;
(r) "Reference Bank" means each of The Dai-Ichi Kangyo Bank, Limited and
The Fuji Bank, Limited;
(s) "Repayment Date" means the Expiration Date; and
(t) "Taxes" includes all taxes, levies, imposts, withholdings and other
similar charges, including interest thereon, penalties with respect
thereto and other ancillary liabilities (other than those
attributable to any Lender).
1.2 In this Agreement, any reference to time shall be a reference to Tokyo
time.
2. PURPOSE
The Borrower shall apply the proceeds of the Loans in or towards the
financing of its mergers and acquisitions of enterprises.
3. RIGHTS AND OBLIGATIONS OF LENDERS
3.1 Subject to the terms of this Agreement, each Lender agrees upon request
of the Borrower to provide the Loans to the Borrower up to an aggregate
maximum principal amount not exceeding its Commitment.
3.2 No Lender shall be responsible for the obligations of any other Lender.
3.3 Each Lender may, save as otherwise stated herein, separately enforce its
rights hereunder.
4. DRAWDOWN
4.1 Subject to the terms of this Agreement, the Borrower may drawdown the
Loans by serving a Notice of Drawdown to the Facility Agent.
4.2 The Borrower may not serve a Notice of Drawdown hereunder until the
conditions precedent set out in Clause 5.1 are satisfied.
4.3 The Borrower shall specify in a Notice of Drawdown with respect to the
borrowing:
(a) the date of drawdown (which shall be a Business Day);
(b) the amount of the Loan (which shall not be less than $1,000,000);
(c) the duration of the first Interest Period; and
(d) payment instruction.
Each Notice of Drawdown once accepted by the Facility Agent shall be
irrevocable. The Borrower shall be bound to borrow in accordance with
such Notice of Drawdown.
4.4 Whenever the Borrower desires to drawdown the Loan hereunder, it shall
give a Notice of Drawdown to the Facility Agent. If each of (i) the
proposed drawdown date, (ii) the day one day prior to the proposed
drawdown date and (iii) the day two days prior to the proposed drawdown
date is a London Banking Day, the Notice of Drawdown shall be received by
the Facility Agent not later than 2:00 p.m. two Business Days prior to
the proposed drawdown date, and subject to its receipt thereof, the
Facility Agent shall notify each Lender of the Notice of Drawdown not
later than 3:00 p.m. two Business Days prior to such drawdown date. If
any of (i) the proposed drawdown date, (ii) the day one day prior to the
proposed drawdown date and (iii) the day two days prior to the proposed
drawdown date is not a London Banking Day, the Notice of Drawdown shall
be received by the Facility Agent not later than 10:00 a.m. two Business
Days prior to the proposed drawdown date, and subject to its receipt
thereof, the Facility Agent shall notify each Lender of the Notice of
Drawdown not later than 11:00 a.m. two Business Days prior to such
drawdown date. Both of such notices by the Borrower and by the Facility
Agent shall be sent by facsimile and by telephone to the facsimile
numbers and telephone numbers respectively set out in EXHIBIT C.
4.5 Each Lender shall make available to the Facility Agent on the proposed
drawdown date, the amount of its share in the Loan in the proportion in
which its Commitment bears to the Total Commitments. The Facility Agent
shall forthwith transfer all such amounts to such account as the Borrower
shall designate in writing. In case where the Facility Agent has
transferred such amounts to the Borrower in anticipation of receipt
thereof from the Lenders and any Lender fails to make the amount of its
share available to the Facility Agent, such Lender shall, upon demand of
the Facility Agent, make such amount available to the Facility Agent
together with interest thereon at such reasonable market rate as the
Facility Agent may certify.
5. CONDITIONS PRECEDENT
5.1 The obligations of the Facility Agent and each Lender hereunder are
subject to the condition that the Facility Agent shall have received all
of the following in form and substance satisfactory to the Facility
Agent:
(a) a certified copy of the company register of the Borrower (shogyo-
tokibo-tohon);
(b) a certified copy of a representative of the Borrower authorised to
execute this Agreement (shikakushomeisho) and a certificate of his
seal (inkanshomeisho); and
(c) a certified copy of the minutes of the meeting of the Board of
Directors of the Borrower authorizing the execution of this
Agreement and the transactions contemplated hereby.
5.2 The obligations of the Facility Agent and each Lender hereunder are
subject to the further conditions precedent that both at the time of the
request for and at the time for the making of each Loan, the
representations and warranties of the Borrower set out in Clause 15.1 are
true and accurate on and as of each such time as if made at each such
time and no Event of Default has occurred and is continuing or would
result from the proposed Loan.
6. INTEREST PERIODS
6.1 Subject to Clause 6.2, the duration of an Interest Period shall be one
month, two months and three months.
6.2 Each Interest Period relating to a Loan shall be of a duration selected
by the Borrower in accordance with Clause 6.1 (i) in the case of the
first Interest Period, in the Notice of Drawdown, and (ii) in the other
cases, by a notice (in the form set out in EXHIBIT E) to the Facility
Agent (which shall be received by the Facility Agent not later than 12:00
a.m. three Business Days prior to such Interest period); provided that:
(a) if the Borrower fails to select an Interest Period, such Interest
Period shall be of a duration of one month;
(b) subject to paragraph (c) below, if any Interest Period would
otherwise end on a day which is not a Business Day, it shall end on
the next following Business Day, unless that day falls in the
calendar month succeeding that in which it would otherwise have
ended, in which case it shall end on the last preceding Business
Day;
(c) if an Interest Period starts on the last Business Day in a calendar
month or if there is no numerically corresponding day in the month
in which that period ends, that Interest Period shall end on the
last Business Day in the relevant month; and
(d) any Interest Period which would extend beyond a Repayment Date shall
end on that Repayment Date (which may not be a full month).
7. INTEREST
7.1 The rate of interest applicable to an Interest Period shall be the rate
per annum to be equal to the sum of the Margin and:
(a) the Base Rate; or
(b) if the Base Rate is not available, the arithmetic mean (rounded to
four decimal place (i) upwards, if the fifth figure from the dismal
point is 5 or more, or (ii) downwards, if the fifth figure from the
decimal point is less than 5) of the lowest rates at which each
Reference Bank was offering deposits to prime banks in the London
interbank market at or about 11:00 a.m. two London Banking Days
prior to the commencement of such Interest Period for a period
comparable to such Interest Period.
7.2 Interest shall accrue from day to day and shall be computed on the basis
of a year of 360 days and for the actual number of days elapsed. In the
calculation of interest hereunder, the first day of an Interest Period
shall count, but the last day shall not count.
7.3 Accrued interest in relation to each Loan shall be payable on the last
day of each Interest Period relating thereto.
7.4 If the Borrower fails to pay any amount payable by it hereunder during
the normal banking hours of the Facility Agent on the due date therefor,
the Borrower shall pay interest on such overdue amount from and excluding
the due date up to and including the date of actual payment. The rate of
interest applicable to such overdue amount shall be the higher of (i) the
rate per annum to be the sum of the rate referred to in Clause 7.1(a) or
(b) (in both cases, the interest period applicable to such overdue amount
to be determined by the Facility Agent) and the Margin plus 1.0 percent
per annum or (ii) 14 percent per annum.
7.5 Each determination of the rate of interest by the Facility Agent
hereunder shall, in the absence of manifest error, be conclusive and
binding upon all parties hereto. The Facility Agent shall promptly notify
the Borrower and the Lenders of such determination of interest.
8. CANCELLATION OF COMMITMENTS
By giving not less than 2 Business Days prior written notice to the
Facility Agent, the Borrower may, without penalty or premium, cancel all
or any part of the Total Commitments.
9. PAYMENT
9.1 All payments to be made by the Borrower hereunder shall be made in US
dollar to the Facility Agent on the date upon which the relevant payment
is due in same day funds to The Dai-Ichi Kangyo Bank, Limited., Head
Office Account with the The Dai-Ichi Kangyo Bank, Limited., New York
Branch/Attn: International Finance Division (Mr. Katsura).
9.2 If and whenever a payment is made by the Borrower hereunder (save in case
where the full amount is paid on the due date), the Facility Agent shall
apply the amount received towards the obligations of the Borrower under
this Agreement in the following order:
first, in or towards payment of any unpaid costs and expenses of
each of the Facility Agent and the Joint Arrangers;
secondly, in or towards payment pro rata of any accrued interest due
but unpaid;
thirdly, in or towards payment pro rata of any principal due but
unpaid; and
fourthly, in or towards payment pro rata of any other sum due but
unpaid.
10. REPAYMENT
The Borrower shall repay all Loans on the Repayment Date.
11. PREPAYMENT
11.1 The Borrower may prepay all or any part of the Loan by giving not less
than 3 Business Days prior notice to the Facility Agent; provided that
the Borrower shall pay to the Lenders the replacement cost if the
repayment is made other than on the last day of any Interest Period. The
replacement cost shall be calculated at the rate produced by subtracting
the Relevant Rate minus 0.0625% with respect to the remaining period of
such Interest Period from the interest rate applicable to the relevant
Interest Period (if it is a negative number, it shall be deemed to be
zero). For the purpose of Clause 11.1, the "Relevant Rate" means:
(i) if the remaining period after the prepayment is one or two months,
Libor corresponding to such period;
(ii) if such period is less than one month, the Interpolated Rate of Fed
Fund Rate and Libor for one month;
(iii) if such period is more than one month and less than two months, the
Interpolated Rate of Libor for one month and Libor for two months;
(iv) if such period is more than two months and less than three months,
the Interpolated Rate of Libor for two months and Libor for three
months.
11.2 The Borrower may not prepay all or any part of the Loans except in
accordance with the express terms of this Agreement.
11.3 The amount prepaid shall not be re-borrowed.
12. TAXES
If any deduction or withholding on account of tax is required by laws and
regulations in relation to payments under the Agreement, the Borrower and
the Lenders shall, through the Facility Agent, consult with each other
and agree on the amount to be borne by each party.
13. INCREASED COSTS
If any costs are incurred in relation to introduction or change of laws
and regulations, the Borrower and the Lenders shall, through the Facility
Agent, consult with each other and agree on the amount to be borne by
each party.
14. MARKET DISRUPTION
14.1 If in relation to any Interest Period, the Facility Agent is notified by
the Majority Lenders
that they are unable to obtain matching deposits in the London Interbank
Market in sufficient amounts to fund the Loan to which the Interest
Period relates, or that the arithmetic mean referred to in Clause 7.1
falls far below the cost to them of obtaining matching deposits, then,
with respect to all Loans (including Loans made after the occurrence of
such event), (i) the duration of that Interest Period shall be one month
and (ii) the rate of interest shall be the rate per annum which is the
sum of the Margin and the rate per annum notified to the Facility Agent
by each Lender to be that which expresses as a percentage rate per annum
the cost to such Lender of funding its participation of the Loan from
whatever sources it may select during such Interest Period; provided that
such Lender shall without delay provides the Borrower with an evidence
which shows that such rate of cost was the lowest among the rates of cost
which such Lender might reasonably obtain.
14.2 If the event mentioned in Clause 14.1 occurs,
then:
(a) the Facility Agent shall notify the Borrower and the Lenders of such
event;
(b) within five days of notification of such event by the Facility
Agent, the Facility Agent (in accordance with the instructions of
the Majority Lenders) and the Borrower shall enter into negotiation
in good faith with a view to agreeing a substitute basis upon which
the Loan may be maintained thereafter; and
(c) if such a substitute basis is agreed upon in writing by the Borrower
and the Facility Agent, it shall take effect in accordance with its
terms.
15. REPRESENTATIONS AND WARRANTIES
15.1 The Borrower represents and warrants to each of the Facility Agent, the
Joint Arrangers and the Lenders, on the date hereof and on the date of
each drawdown, that:
(a) the Borrower is a corporation duly organised and validly existing
under the laws of Japan;
(b) the Borrower has the power to enter into and perform this Agreement
and has taken all necessary actions to authorise the entry into and
performance of this Agreement;
(c) the entry into and performance of this Agreement do not and will not
conflict with (i) the Articles of Incorporation of the Borrower, or
(ii) any agreement or document to which the Borrower is a party;
(d) all authorisations or licences required in connection with the entry
into and performance of this Agreement have been obtained and the
necessary registration and other formalities have been performed;
(e) no event has occurred which constitutes a default under any
agreement or document to which the Borrower is a party (including
this Agreement);
(f) since the date of the half-year statement for the first half of the
fiscal year 1999, there has been no material change (other than
changes relating to the acquisition of Verio Inc.) which has any
materially adverse effect on the financial conditions of the
Borrower in the case of the performance by the Borrower of the
obligations hereunder; and
(g) no litigation, arbitration or administrative proceedings are pending
which have any materially adverse effect on the financial conditions
of the Borrower in the case of the performance by the Borrower of
the obligations hereunder.
16. COVENANTS
16.1 The Borrower shall furnish to the Facility Agent:
(a) the audited financial statements of the Borrower for each fiscal
year within 120 days of the date of settlement of account; and
(b) the audited half-year financial statements of the Borrower for each
half-year settlement within 120 days of the date of half-year
settlement.
16.2 The Borrower undertakes to ensure that its obligations hereunder do and
will rank at least pari passu with all other unsecured obligations of the
Borrower, other than those which are preferred by applicable laws.
16.3 The Borrower shall immediately notify the Facility Agent of any event
which might, in the judgment of the Borrower, have any materially adverse
effect on the financial conditions of the Borrower in the case of the
performance by the Borrower of the obligations under this Agreement.
17. EVENTS OF DEFAULT
17.1 Each of the events set out below is an Event of Default:
(a) the Borrower does not pay on the due date any amount, in whole or in
part, payable by it hereunder;
(b) the Borrower defaults in the due performance or observance of any or
all of its covenants, undertakings or obligations under this
Agreement (including the covenants in Clause 16);
(c) any representation, warranty or statement made or repeated in, or in
connection with, this Agreement is untrue or incorrect;
(d) the Borrower does not pay any other Borrowing on the due date;
(e) the Borrower becomes unable to pay debts or an application or
petition is submitted for bankruptcy (hasan), commencement of civil
rehabilitation proceedings (minjisaiseitetsuzuki), commencement of
corporate reorganization proceedings (kaishakoseitetsuzuki),
commencement of company arrangement (kaishaseiri), or commencement
of special liquidation (tokubetsuseisan);
(f) a clearing house takes procedures on the Borrower for suspension of
transactions with banks and similar institutions;
(g) an order or notice of provisional attachment (karisashiosae),
preservative attachment (hozensashiosae) or attachment (sashiosae)
is issued in respect of the Borrower's deposits or other credits
with any Lender;
(h) a property offered to any Lender as security is attached or public
auction procedure is commenced in respect of such property;
17.2 If any of the Events of Default referred to in Clause 17.1 (a), (b), (c),
(d) or (h) occurs, the Facility Agent, acting at the direction in writing
of the Majority Lenders, shall, by giving a written notice to the
Borrower, (i) cancel the Commitment of each of the Lenders and the Total
Commitments and (ii) declare all the Loans to be immediately due and
payable.
17.3 If any of the Events of Default referred to in Clause 17.1 (e), (f) or
(g) occurs, (i) the Commitment of each of the Lenders and the Total
Commitments shall be forthwith canceled and (ii) all the Loans shall
become immediately due and payable.
18. SET-OFF
Each Lender may, if and when all Loans become due and payable in
accordance with Clause 17, set-off its payment obligations to the
Borrower against any payment obligations of the Borrower hereunder
without respect to the place or currency of payment.
19. REDISTRIBUTION OF PAYMENTS
If any Lender has recovered (whether by set-off or otherwise) any sum
from the Borrower and the percentage of recovery differs among the
Lenders, any percentage of recovery exceeding the smallest percentage
shall be regarded as having been recovered for account of all the
Lenders. Each Lender shall pay to the Facility Agent the amount of such
percentage and the Facility Agent shall distribute the same to the
Lenders in proportion of their respective Commitments.
20. INDEMNITIES
20.1 The Borrower shall indemnify each of the Facility Agent, the Joint
Arrangers and the Lenders against any actual and direct losses or
reasonable expenses (including the fees and expenses of legal advisers)
which any of them may sustain or incur as a consequence of the occurrence
of any Event of Default hereunder.
20.2 If any repayment or prepayment of any Loan is made under Clause 17
otherwise than on the last day of any Interest Period, the Borrower shall
compensate each Lender for any reasonable cost and reasonable expense in
relation to such Loan.
21. FEES
The Borrower shall pay to the Facility Agent, every three months in
arrears (or on the Expiration Date in the case of the last payment), a
commitment fee computed at the rate of 0.020 percent per annum on the
daily undrawn amount of the Total Commitments (on the basis of a year of
365 days and for the actual number of days elapsed) with respect to a
period from the first drawdown date to the Expiration Date (both
inclusive) within ten Business Days after the last day of the said three
months period (or after the Expiration Date in the case of the last
payment). The Facility Agent shall distribute such commitment fee among
the Lenders in proportion to their respective Commitments.
22. COSTS AND EXPENSES
The Borrower shall, if and when an Event of Default occurs, reimburse the
Facility Agent, the Joint Arrangers and the Lenders for the costs and
expenses (including fees and expenses
of legal advisers) incurred in connection with the enforcement or
preservation of any rights under this Agreement.
23. STAMP DUTIES
The Borrower shall pay a stump duty in the amount of \600,000 for one
original copy of this Agreement.
24. THE FACILITY AGENT
24.1 Each Lender irrevocably authorises the Facility Agent on such Lender's
behalf to perform such duties and to exercise such rights and powers
under this Agreement as are specifically delegated to the Facility Agent
by the terms of this Agreement, together with such rights and powers as
are reasonably incidental thereto. The Facility Agent shall have only
those duties and powers which are expressly specified in this Agreement.
24.2 The relationship between the Facility Agent and each Lender is that of
principal and agent only. Nothing herein shall constitute the Facility
Agent a trustee or fiduciary for any Lender, the Borrower or any other
person. The Facility Agent shall not in any respect be agent of the
Borrower by virtue of this Agreement. The Facility Agent shall not be
liable to the Borrower for any breach by any Joint Arrangers or Lender of
this Agreement or be liable to any Lender or Joint Arrangers for any
breach by the Borrower hereof.
24.3 Except as otherwise expressly provided herein, the Facility Agent shall
not be obligated to account to any Lender for any amount received in
respect of any loan maintained by the Facility Agent or any of its
affiliates or for the profit related thereto. The Facility Agent and its
affiliates may, without liability to account to any Lender therefor, make
loans to, accept deposits from, and generally engage in any kind of
business with, the Borrower as though the Facility Agent were not the
Facility Agent.
24.4 As to any matter not expressly provided for in this Agreement, the
Facility Agent may act or refrain from acting in accordance with the
instructions of the Majority Lenders. In the absence of any such
instructions, the Facility Agent may act or refrain from acting as it
shall see fit.
24.5 The Facility Agent shall, on a confidential basis, furnish each Lender
with a copy of any documents received by it hereunder. The Facility Agent
need not disclose any information relating to the Borrower or any related
entities if such disclosure would or might in the opinion of the Facility
Agent constitute a breach of law or of any duty of secrecy or confidence.
24.6 The Facility Agent shall not be required to ascertain or inquire as to
the performance or observance by the Borrower of the terms of this
Agreement or any other documents in connection herewith. The Facility
Agent shall not be deemed to have knowledge of the occurrence of any
Event of Default or event which with lapse of time, notice, determination
of materiality or other condition may constitute such an Event of Default
unless the Facility Agent has received written notice from a party hereto
describing such Event of Default or event. If the Facility Agent receives
such a notice of default, the Facility Agent shall give notice thereof to
the Lenders. Until the Facility Agent shall have received the
instructions of the Majority Lenders, the Facility Agent may (but shall
not be obliged to) take or refrain from taking such action with respect
to such Event of Default or event as it shall see fit. The Facility Agent
may refrain from acting in accordance with any instructions of the
Majority Lenders to begin any legal action or proceeding in connection
with this Agreement
until it shall have been indemnified or secured to its satisfaction
against any losses, damages, penalties, actions, judgments, suits, costs,
claims, disbursements, expenses (including all legal fees and expenses)
which may result as a result of the Facility Agent complying with such
instructions.
24.7 Neither the Facility Agent nor any Joint Arranger nor any of their
officers, employees or agents shall be responsible to any Lender or to
each other for:
(a) the validity, enforceability or sufficiency of this Agreement or any
other document in connection herewith, or
(b) the accuracy of any statements (whether written or oral) made in or
in connection with this Agreement or any other documents in
connection herewith.
24.8 Neither the Facility Agent nor any of its officers, employees or agents
shall be liable to any Lender for any action taken or omitted under or in
connection with this Agreement unless caused by its or their gross
negligence or wilful misconduct.
24.9 The Facility Agent may rely on any communication or documents believed by
it to be genuine and correct.
24.10 The Facility Agent may engage, pay for and rely on legal or other
professional advisers selected by it and shall be protected in so
relying.
24.11 Each of the Lenders severally represents and warrants to the Facility
Agent and each Joint Arranger that it has made its own independent
investigation and assessment of the financial condition and affairs of
the Borrower and its related entities in connection with its
participation in this Agreement and has not relied exclusively on any
information provided to such Lender by the Facility Agent or any Joint
Arranger in connection herewith. Each Lender warrants and undertakes to
the Facility Agent and each Joint Arranger that it shall continue to make
its own independent appraisal of the creditworthiness of the Borrower and
its related entities while the Loans are outstanding or its Commitment is
in force.
24.12 Each Lender agrees to indemnify the Facility Agent on demand (to the
extent not reimbursed by the Borrower and without prejudice to the
liability of the Borrower under this Agreement) for any and all
liabilities, losses, damages, penalties, actions, judgements, costs,
expenses or disbursements of any kind whatsoever which the Facility Agent
may sustain or incur in any way relating to or arising out of its acting
as the Facility Agent hereunder or performing its duties hereunder or any
action taken or omitted by the Facility Agent hereunder. Such
indemnification by each Lender shall be pro rata to its Commitment or (as
the case may be) participation herein. Notwithstanding the foregoing, no
Lender shall be liable for any portion of the foregoing resulting from
the Facility Agent's gross negligence or wilful misconduct.
24.13 The Facility Agent may, subject to the prior consent of the Borrower,
resign by giving written notice thereof to the Lenders. In that event,
the Majority Lenders may appoint a successor Facility Agent. If the
Majority Lenders have not, within sixty days after such notice of
resignation, appointed a successor Facility Agent which shall have
accepted such appointment, the retiring Facility Agent shall have the
right to appoint a successor Facility Agent. The resignation of the
retiring Facility Agent and the appointment of any successor Facility
Agent shall both become effective upon the successor Facility Agent
notifying all the parties hereto in writing that it accepts such
appointment, whereupon the successor Facility Agent shall succeed to the
position of the retiring Facility Agent and the term
"Facility Agent" herein shall mean such successor Facility Agent. This
Clause 24 shall continue to benefit a retiring Facility Agent in respect
of any action taken or omitted by it hereunder while it was Facility
Agent.
24.14 In the computation of any amount hereunder, the Facility Agent may, at
its sole discretion, deal with an amount less than one cent.
25. NOTICES
25.1 Unless otherwise provided herein, the address, telephone number and
facsimile number of each party for all notices under or in connection
with this Agreement are:
(i) those specified in Exhibit C; or
(ii) any other notified by such party for this purpose to the Facility
Agent by not less than 10 Business Days' notice.
25.2 Any notice made by telephone shall be confirmed by facsimile or otherwise
in writing.
26. ASSIGNMENTS
26.1 The Borrower may not assign or transfer its rights and/or obligations
hereunder.
26.2 Any Lender may, subject to the consent of each of the Borrower and the
Facility Agent, assign to any lending institutions such Lender's rights
and/or obligations hereunder. The Facility Agent shall not unreasonably
withhold its consent.
26.3 Any Lender may, on a confidential basis, disclose information concerning
the Borrower to a potential assignee or to any person who may otherwise
enter into contractual relations with such Lender in relation to such
Lender's rights under this Agreement.
27. AMENDMENT OF AGREEMENT
This Agreement may be amended by a written agreement between the Borrower
and the Majority Lenders; provided that an agreement by all the parties
shall be required in relation to the following matters:
1 Base Rate;
2 Commitment;
3 Margin;
4 Expiration Date;
5 Repayment Date;
6 Conditions precedent referred to in Clause 5;
7 Representations and warranties referred to in Clause 15;
8 Covenants referred to in Clause 16;
9 Event of Default;
10 Commitment fee referred to in Clause 21; and
11 matters which would, in the opinion of the Facility Agent,
adversely affect the rights, or increase the obligations, of
the Lenders.
28. MUTUAL CONSULTATION
Matters not provided for in the Agreement or matters giving rise to
questions shall be
settled by the consultation between the Borrower and the Lenders through
the Facility Agent.
29. GOVERNING LAW
This Agreement shall be governed by, and shall be construed in accordance
with, Japanese law.
30. JURISDICTION
Each of the parties hereto agrees that the Tokyo District Court shall
have jurisdiction over any disputes which may arise in connection with
this Agreement.
IN WITNESS whereof, the parties hereto have caused this Agreement to be duly
executed in one original copy hereof on the date first written above and the
Facility Agent shall keep the said original copy.
EXHIBIT A
COMMITMENTS
Name of Lender Commitment
- -------------------------
The Dai-Ichi Kangyo Bank, Limited US$1,600,000,000
The Fuji Bank, Limited US$1,600,000,000
The Industrial Bank of Japan, Limited US$800,000,000
The Sumitomo Bank, Limited US$800,000,000
The Bank of Tokyo-Mitsubishi, Ltd. US$400,000,000
The Sakura Bank, Limited US$400,000,000
The Sanwa Bank, Limited US$400,000,000
- ----------------------------------------------------------
Total Commitments US$6,000,000,000
EXHIBIT B
NOTICE OF DRAWDOWN
To: THE DAI-ICHI KANGYO BANK, LIMITED Date: [ ]
Pursuant to Clause 4.4 of the Facility Agreement (the "Facility Agreement")
dated 12 June 2000 and made between ourselves, the Joint Arrangers, the Lenders
and yourselves as Facility Agent, we hereby give you notice of the following
proposed borrowing:
(a) Date of Drawdown:[ ]
(b) Amount: US$[ ]
(c) Duration of First Interest Period: [ ] month(s)
(d) Money Borrowed to Be Transferred to:
Bank / Branch: [ ] /[ ]
Account Name: [ ]
Account Number: [ ]
We confirm that the representations and warranties made by us and set out in
Clause 15 of the Facility Agreement are true and accurate on the date hereof,
and that no Event of Default (as defined in the Facility Agreement) has occurred
and is continuing or would result from the proposed borrowing.
NTT Communications Corporation
--------------------------------
EXHIBIT C
ADDRESS, FACSIMILE AND TELEPHONE NUMBERS
NTT Communications Corporation
- ------------------------------
Address: 1-1-6, Uchisaiwai-cho, Chiyoda-ku, Tokyo 100-8019
Attention: Finance and Treasury Division/Accounts and Finance Department
Telephone No.: 03-3500-8338
Facsimile No.: 03-3539-3072
The Dai-Ichi Kangyo Bank, Limited (as Facility Agent)
- -----------------------------------------------------
Address: 1-1-5, Uchisaiwaicho, Chiyoda-ku, Tokyo 100-0011
Attention: International Finance Division
Telephone No.: 03-3596-2448
Facsimile No.: 03-3596-2394
The Dai-Ichi Kangyo Bank, Limited (as Lender)
- ---------------------------------------------
Address: 1-1-5, Uchisaiwaicho, Chiyoda-ku, Tokyo 100-0011
Attention: Corporate Banking Division
Telephone No.: 3596-5461
Facsimile No.: 3596-5497
The Fuji Bank, Limited
- ------------------------
Address: 1-5-5, Otemachi, Chiyoda-ku, Tokyo 100-0004
Attention: Corporate Banking Division V
Telephone No.: 03-3201-7189
Facsimile No.: 03-3201-1902
The Industrial Bank of Japan, Limited
- -------------------------------------
Address: 1-3-3, Marunouchi, Chiyoda-ku, Tokyo 100-8210
Attention: Corporate Banking Department
(Media & Telecommunication)
Telephone No.: 03-5252-8844
Facsimile No.: 03-3214-0710
The Sumitomo Bank, Limited
- -----------------------------
Address: 1-3-2, Marunouchi, Chiyoda-ku, Tokyo 100-0005
Attention: Tokyo Corporate & Institutional Banking Department
Telephone No.: 03-3282-5241
Facsimile No.: 03-3282-8333
The Bank of Tokyo-Mitsubishi, Ltd.
- ----------------------------------
Address: 2-7-1, Marunouchi, Chiyoda-ku, Tokyo 100-8388
Attention: Corporate Banking Div. No. 2,
Corporate Banking Gr. No. 2
Telephone No.: 03-3240-5419
Facsimile No.: 03-3240-5283
The Sakura Bank, Limited
- ----------------------------
Address: 1-3-1, Kudan Minami, Chiyoda-ku, Tokyo 100-8611
Attention: Head Office Division
Telephone No.: 03-5276-0607
Facsimile No.: 03-3239-8890
The Sanwa Bank, Limited
- ----------------------------
Address: 1-1-1, Otemachi, Chiyoda-ku, Tokyo 100-8114
Attention: Tokyo Corporate Banking Office V
Telephone No.: 03-5252-1755
Facsimile No.: 03-3201-7967
EXHIBIT D
INTERPOLATED RATE
Interest Period: X month(s) + Y days
X month(s) rate: the relevant rate corresponding to X month(s)
(X+1)month(s) rate: the relevant rate corresponding to (X + 1)month(s)
Z: number of days of the relevant month
Xmonths(s)rate (Z-Y)+(X+1)months(s)rate Y
Interpolated Rate(*) = -----------------------------------------
Z
* To be rounded to four decimal place (i) upwards, if the fifth figure
from the dismal point is 5 or more, or (ii) downwards, if the fifth
figure from the decimal point is less than 5.
EXHIBIT E
NOTICE OF INTEREST PERIOD
To: THE DAI-ICHI KANGYO BANK, LIMITED Date: [ ]
Pursuant to Clause 6.2 of the Facility Agreement (the "Facility Agreement")
dated 12 June 2000 and made between ourselves, the Joint Arrangers, the Lenders
and yourselves as Facility Agent, we hereby select the duration of Interest
Period commencing on [ ] with respect to the Loan of US$ [ ] as
follows:
Duration of Interest Period: [ ] month(s)
NTT Communications Corporation
_______________________________________
SIGNATORIES
The Borrower NTT COMMUNICATIONS CORPORATION
- ------------
SIGNATORIES
The Facility Agent, a Joint Arranger and a THE DAI-ICHI KANGYO BANK, LIMITED
Lender
SIGNATORIES
A Joint Arranger and a Lender THE FUJI BANK, LIMITED
- -----------------------------
SIGNATORIES
A Lender THE INDUSTRIAL BANK OF JAPAN, LIMITED
- -------- -------------------------------------
SIGNATORIES
A Lender THE SUMITOMO BANK, LIMITED
- -------- --------------------------
SIGNATORIES
A Lender THE BANK OF TOKYO-MITSUBISHI, LTD.
- -------- ----------------------------------
SIGNATORIES
A Lender THE SAKURA BANK, LIMITED
- -------- ------------------------
SIGNATORIES
A Lender THE SANWA BANK, LIMITED
- -------- -----------------------