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Exhibit (d)(5)
VERIO INC.
8005 S. Chester Street, Suite 200
Englewood, Colorado 80112
July 17, 2000
NTT Communications Corporation
1-1-6, Uchisaiwai-cho
Chiyoda-ku, Tokyo 100-8019
Japan
Re: Note Purchase Tender Offer Facility
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Ladies and Gentlemen:
At the request of NTT Communications Corporation, a limited liability
joint stock company incorporated under the laws of Japan ("NTTC"), made in
accordance with the Agreement and Plan of Merger dated as of May 7, 2000 (the
"Merger Agreement") among NTTC, Verio Inc., a Delaware corporation (the
"Company"), and Chaser Acquisition, Inc., a Delaware corporation and indirect
wholly-owned subsidiary of NTTC ("Chaser"), the Company intends to offer to
purchase for cash (the "Note Tender Offer") any and all of its outstanding
13 1/2% Senior Notes due 2004, 10 3/8% Senior Notes due 2005, 11 1/4% Senior
Notes due 2008, and 10 5/8% Senior Notes due 2009 (collectively, the "Notes").
The Note Tender Offer will be made substantially in accordance with, and subject
to the terms and conditions described in, the Company's Offer to Purchase and
Consent Solicitation Statement (draft dated July 17, 2000) with respect to the
Note Tender Offer (the "Offer Statement").
The Note Tender Offer is being made in connection with the acquisition
of the Company by Chaser pursuant to a tender offer by Chaser for certain of the
Company's outstanding equity securities and merger of Chaser with and into the
Company (the "Merger"). As a result of such acquisition and Merger, the Company
would become an indirect wholly-owned subsidiary of NTTC.
As part of the Note Tender Offer, the Company will solicit the consent
to the adoption of certain amendments to the indentures governing the Notes to
eliminate certain restrictive covenants in such indentures in order to
facilitate the Merger and to increase the Company's operating flexibility after
the Merger. Holders of Notes who validly tender their Notes pursuant to the Note
Tender Offer will be deemed to have delivered the related consent to such
amendments.
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Confidential
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The Company has advised NTTC that in order to finance its purchase of
Notes pursuant to the Note Tender Offer, the Company will require financing of
up to US$1,300,000,000. The Company hereby requests NTTC to provide the Company
its commitment to provide such financing.
Accordingly, the Company requests NTTC to hereby confirm its
commitment to provide a short-term bridge loan of up to US$1,300,000,000 (the
"Tender Offer Facility"), which commitment is subject to the terms and
conditions contained in this letter and outlined in the attached Summary of
Terms and Conditions (the "Term Sheet", and, together with this letter, the
"Commitment"). The Commitment is further subject to the negotiation, execution
and delivery of an appropriate promissory note and/or loan agreement (the "Loan
Agreement") and other definitive documents, certificates, opinions and
instruments (collectively, including the Loan Agreement, the "Loan Documents")
which are yet to be negotiated, which must be based upon and substantially
consistent with the Term Sheet, and which must be reasonably satisfactory in all
respects to both NTTC and the Company and their respective counsel. The Term
Sheet is intended as an outline only and does not include all of the terms,
conditions, covenants, representations, warranties, defaults and other
provisions which will be contained in the Loan Documents, and the Loan Documents
shall include, in addition to the provisions outlined in the Term Sheet,
provisions which, in the opinion of NTTC and the Company and their respective
counsel, are customary for this type of lending transaction.
This Commitment shall become effective upon written acceptance of this
letter agreement by NTTC. This Commitment may be terminated (i) by the Company
at any time with prior written consent by NTTC, or (ii) by NTTC, if (a) the Note
Tender Offer is withdrawn by the Company, (b) the Note Tender Offer is
terminated, modified or changed in any material respect, or any conditions to
the Note Tender Offer as set forth in the Offer Statement are waived by the
Company, in any case without the prior written consent of NTTC, or (c) the
Merger Agreement is terminated in accordance with its terms.
The agreements of NTTC under this Commitment are made solely for the
benefit of the Company and may not be relied upon or enforced by any other
person. NTTC shall not be liable under this Commitment or the Loan Documents or
in respect of any act, omission or event relating to the transactions
contemplated thereby, on any theory of liability, for any special, indirect,
consequential or punitive damages. IF THIS COMMITMENT BECOMES THE SUBJECT OF A
DISPUTE, EACH OF THE PARTIES HERETO HEREBY WAIVES TRIAL BY JURY. This Commitment
shall be governed by and construed in accordance with the laws of Japan. Any
dispute between the Company and NTTC with respect to this Commitment shall be
resolved exclusively by the Courts of Japan.
* * * *
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Confidential
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Please indicate NTTC's acceptance of and agreement to the foregoing by
signing the enclosed copy of this Commitment and returning it to the Company.
Very truly yours,
VERIO INC.
By: /s/ Peter B. Fritzinger
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Title: CFO
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Date: 7.17.00
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Accepted and Agreed to:
NTT COMMUNICATIONS CORPORATION
By: /s/ Yoshimoto Miyahara
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Yoshimoto Miyahara
Title: Vice President
Executive Manager
Accounts and Finance Department
Date:
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Confidential
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Summary of Terms and Conditions
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Borrower: Verio Inc., a Delaware corporation.
Lender: NTT Communications Corporation.
Facility Amount: Maximum US$1,300,000,000.
Maturity Date: 31 March, 2001.
Purpose of Tender
Offer Facility: Exit Tender Offer of Senior Notes.
Interest Rate: LIBOR (Telerate 3750) plus 0.325% per annum. Interest
payable under this Loan will be calculated on the basis of
actual number of days elapsed in a year of 360 days.
Interest Period: Interest Period of 1, 2 or 3 months shall be determined by
the Lender.
Payment: The loan shall be paid in full on the Maturity Date.
Prepayment: The Borrower shall pay to the Lender the replacement cost if
the repayment is made other than on the last day of the
Interest Period. The replacement cost shall be calculated at
the rate by which the interest rate applicable to the
relevant Interest Period exceeds BBA Libor minus 0.0625%
with respect to the remaining period of such Interest
Period. BBA Libor used for the calculation is, if the
remaining period after the prepayment is 1 or 2 months, the
BBA Libor corresponding to such period; if such period is
less than 1 month, the interpolated average of Fed Fund Rate
and BBA Libor for 1 month; if more than 1 month and less
than 2 months, the interpolated average of BBA Libor for 1
month and BBA Libor for 2 months; if more than 2 months and
less than 3 months, the weighted average of BBA Libor for 2
months and BBA Libor for 3 months.
Conditions To
Borrowing: All borrowings under the Tender Offer Facility will be
subject to satisfaction of the following conditions:
1. Chaser shall have consummated the Equity Tender Offer.
2. All other terms and conditions of the Note Tender Offer
shall have been satisfied in accordance with the
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Commitment Letter and the Offer Statement, including
each of the General Conditions defined in the Offer
Statement.
3. The Offer Statement shall not have been amended, waived
or modified as to price, consideration, conditions,
termination or expiration or in other material respect
without the further written approval of the Lender.
4. The Loan Agreement and other Loan Documents (including
opinions of the Borrower's counsel), in form
satisfactory to the Lender, shall have been executed and
delivered by the Company, and no event shall have
occurred which is, or upon notice or passage of time
would be, an event of default thereunder.
Governing Laws: The laws of Japan.
Jurisdiction: Courts of Tokyo, Japan.
