WAIVER AND AMENDMENT NO. 1 TO CREDIT AND GUARANTY AGREEMENT
EXHIBIT
10.67
WAIVER
AND AMENDMENT NO. 1 TO
WAIVER
AND AMENDMENT NO. 1 TO CREDIT AND GUARANTY AGREEMENT
(the
“Amendment”)
dated
as of September 22, 2008, is among AboveNet, Inc., a Delaware corporation,
AboveNet Communications, Inc., a Delaware corporation, AboveNet of Utah, LLC,
a
Delaware limited liability company, AboveNet of VA, LLC, a Virginia limited
liability company, and AboveNet International Inc., a Delaware corporation,
(hereinafter the “Borrowers”),
the
Lenders from time to time parties thereto, Societe Generale, as administrative
agent (the “Administrative
Agent”),
and
CIT Lending Services Corporation, as documentation agent (the “Documentation
Agent”)
(the
Administrative Agent and the Documentation Agent together, the “Agents”).
WHEREAS,
the
Borrowers, the Agents and the Lenders are parties to that certain Credit and
Guaranty Agreement dated as of February 29, 2008 (the “Credit
Agreement;”
undefined capitalized terms used herein shall have the meanings assigned thereto
in the Credit Agreement), pursuant to which the Lenders have agreed to make
certain “Loans” and other financial accommodations to the
Borrowers;
WHEREAS,
the
Borrowers have requested that the Agents and the Lenders amend the Credit
Agreement in the manner set forth herein in order to (i) allow for an extension
of the Availability Period of the Delayed Draw Loan from November 25, 2008,
which is the date resulting from the 270-day term currently set forth in
sub-section “(A)” of letter “(b)” of the definition of “Availability Period” in
the Credit Agreement, to June 30, 2009, and (ii) fix June 30, 2009 as the
termination date of the Availability Period for any delayed draw loan under
New
Loan Commitments, as defined in the Credit Agreement, and the Agents and the
Lenders have agreed to such request;
WHEREAS,
the
Borrowers have informed the Lenders that following the Closing Date, the
Borrowers repurchased equity from certain former employees (the “Equity
Repurchases”),
and
request that the Lenders waive the Borrowers’ compliance with the negative
covenant set forth in Section
7.06
of the
Credit Agreement with respect to the Equity Repurchases (“Waiver
Request No. 1”);
WHEREAS,
the
Borrowers have further requested that the Agents and the Lenders amend the
Credit Agreement in the manner set forth herein in order to allow the repurchase
of Equity Interest of Holdings from former employees and directors;
WHEREAS,
the
Borrowers have informed the Lenders that pursuant to its plan of reorganization
which became effective on September 8, 2003 Holdings was authorized to issue
warrants to certain of its creditors in the following amounts: (i) seven hundred
and nine thousand four hundred and fifty nine (709,459) 5-year warrants with
an
exercise price of $20 per share (the “5-Year
Warrants”)
and
(ii) eight hundred thirty four thousand six hundred and fifty eight (834,658)
7-year warrants with an exercise price of $24 per share (the “7-Year
Warrants”).
Certain of the 5 Year Warrants and 7-Year Warrants have been exercised, thus
requiring Holdings to have issued corresponding Equity Interests. Accordingly,
the Borrowers request that the Lenders waive the Borrowers’ compliance with the
negative covenant set forth in Section
7.05
of the
Credit Agreement and with the Mandatory Prepayment provision set forth in
Section
2.05(b)(ii)
of the
Credit Agreement, in each case only with respect to the issuance of Equity
Interests by Holdings as a result of the exercise of the 5-Year Warrants and
7-Year Warrants (“Waiver
Request No. 2”);
WHEREAS,
the
Borrowers have further requested that the Agents and the Lenders amend the
Credit Agreement in the manner set forth herein in order to exclude the issuance
of Equity Interests by Holdings from the definition of “Dispositions” or
“Dispose”;
WHEREAS,
the
Borrowers have informed the Lenders that on or about August 19, 2008, one of
the
Borrowers, AboveNet, Inc., filed trademark applications with the US Patent
and
Trademark Office for the names “EXPRESSWAVE” and “eXpressWave” to be used in
connection with its long haul services (the “New
Trademarks”);
WHEREAS,
the
Lenders and the Borrowers agree that (i) the New Trademarks are part of the
Collateral, (ii) the Lenders shall waive any amendment of the Loan Documents
in
connection with the New Trademarks but reserve the right to amend the same
and
(iii) the Borrowers shall cooperate fully with any future amendment in
connection with the New Trademarks requested by the Lenders; and
WHEREAS,
the
Lenders and the Borrowers are entering into this Amendment pursuant to
Section
12.01
of the
Credit Agreement.
NOW,
THEREFORE,
in
consideration of the premises set forth above, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
Borrowers, the Agents and the Lenders agree as follows:
1. Availability
Period for Delayed Draw Loans.
The
Availability Period for Delayed Draw Loans shall be extended from November
25,
2008 to June 30, 2009. The Availability Period for the New Loan Commitments
which are Delayed Draw Commitments shall terminate on June 30, 2009. To this
effect, the Credit Agreement is amended as follows:
(a)
the
definition of “Availability Period” in Section
1.01
of the
Credit Agreement shall therefore be amended and restated in its entirety as
follows:
“Availability
Period”
means,
(a) with respect to the Revolving Commitments, the period from and including
the
Closing Date to the earliest of (i) the date one (1) Business Day prior to
the
Maturity Date, (ii) the date of termination of the Revolving Commitments
pursuant to Section
2.06,
and
(iii) the date of termination of the commitment of each Lender to make Loans
and
of the obligation of the L/C Issuer to make L/C Credit Extensions, in each
case
pursuant to Section
9.02
and (b)
(A) with respect to the Delayed Draw Commitments, the period from and including
the Closing Date to and including June 30, 2009, or (B) with respect to the
New
Loan Commitments which are Delayed Draw Commitments the period from and
including the NLC Effective Date to and including June 30, 2009.
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(b)
Section
2.15 (d)(ii)
of the
Credit Agreement shall therefore be deleted in its entirety and replaced with
the following:
(ii)
INTENTIONALLY OMITTED.
2. Permitted
Equity Repurchases.
The
definition of “Permitted Equity Repurchases” in Section
1.01
of the
Credit Agreement is hereby deleted and restated in its entirety as
follows:
“Permitted
Equity Repurchases”
mean
purchases of Equity Interest of Holdings from employees, consultants and
directors, or of former employees, consultants and directors, of Holdings and
its Subsidiaries in an aggregate amount not to exceed $15,000,000 in the
aggregate.
3. Dispositions.
The
definition of “Dispositions” or “Dispose” in Section
1.01
of the
Credit Agreement is hereby deleted and restated in its entirety as
follows:
“Disposition”
or
“Dispose”
means
the sale, transfer, license, lease or other disposition (including any Sale
and
Leaseback Transaction and any grant of an IRU) of any Property by any Loan
Party
or any Domestic Subsidiary (including the Equity Interest of any Domestic
Subsidiary) and including any sale, assignment, transfer or other disposal,
with
or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith, but excluding (a) the sale, lease, license,
transfer or other disposition of inventory in the ordinary course of business
of
the Loan Parties and their Domestic Subsidiaries, (b) the sale, lease,
license, transfer or other disposition of machinery and equipment no longer
used
or useful in the conduct of business of the Loan Parties and their Domestic
Subsidiaries, and having a sales or transfer price not to exceed $2,000,000
in
any Fiscal Year, (c) any sale, lease, license, transfer or other
disposition of Property by any Loan Party to any other Loan Party, or any
Domestic Subsidiary to any Loan Party, (d) any Involuntary Disposition by
any Loan Party or any Domestic Subsidiary, (e) licenses or leases of IP Rights
or property, to the extent permitted pursuant to Section
7.01(i),
(f)
abandonment of IP Rights to the extent permitted by the Security Agreement,
(g)
dispositions of Cash Equivalents, (h) dispositions of past due accounts
receivable for collection or compromise in the ordinary course of business,
and
(i) dispositions of Dark Fiber in the ordinary course of business, including
IRUs, pursuant to customer contracts or fiber swap agreements entered into
on an
arms-length basis and consistent with past practices, provided,
however,
in the
case of (i) above, that the relevant Loan Party or Domestic Subsidiary, as
applicable, at all times retains title to such asset. Notwithstanding the
forgoing, the term “Disposition” or “Dispose” shall not include the issuance of
Equity Interests by Holdings.
4. Waivers.
Effective as of the date first above written and subject to the execution of
this Amendment by the parties hereto, the Lenders hereby waive (i) the
compliance by the Borrowers with the provision of Section
7.06
of the
Credit Agreement only in connection with the matters set forth in Waiver Request
No. 1, (ii) the compliance by the Borrowers with the provision of Section
2.05(b)(ii)
and
Section
7.05
of the
Credit Agreement only in connection with the matters expressly set forth in
Waiver Request No. 2 and (iii) the amendment of the Loan Documents in connection
with the New Trademarks until such time as the Agents shall
request.
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5. Waiver
and Amendment.
Effective as of the date first above written and subject to the execution of
this Amendment by the parties hereto, the Credit Agreement shall be and is
hereby amended on the terms set forth in Section
1,
Section
2
and
Section
3
hereof.
6. Conditions
Precedent.
This
Amendment shall become effective as of the date above written, if, and only
if
the Documentation Agent has received duly executed originals of this Amendment
from the Borrowers, the Lenders and the Agents.
7. Representations
and Warranties of the Borrowers.
The
Borrowers hereby represent and warrant as follows:
(a) This
Amendment, and the Credit Agreement, as amended hereby, constitute legal, valid
and binding obligations of the Borrowers and are enforceable against the
Borrowers in accordance with their terms.
(b) Upon
the
effectiveness of this Amendment, the Borrowers hereby reaffirm all
representations and warranties made in the Credit Agreement, and to the extent
the same are not amended hereby, agree that all such representations and
warranties shall be deemed to have been remade as of the date of delivery of
this Amendment, unless and to the extent that any such representation and
warranty is stated to relate solely to an earlier date, in which case such
representation and warranty shall be true and correct as of such earlier
date.
(c) As
of the
date hereof, and after giving effect to this Amendment, the Borrowers shall
be
in compliance with all the terms and provisions set forth in the Credit
Agreement, subject to the amendment set forth herein, on its part to be observed
or performed, and no Event of Default or Default shall have occurred and be
continuing.
8. Reference
to and Effect on the Credit Agreement.
(a) Upon
the
effectiveness of Section
5
hereof
each reference in the Credit Agreement to “this Agreement,” “hereunder,”
“hereof,” “herein” or words of like import shall mean and be a reference to the
Credit Agreement as amended hereby, and each reference to the Credit Agreement
in any other document, instrument or agreement shall mean and be a reference
to
the Credit Agreement as modified hereby.
(b) The
Credit Agreement, as amended hereby, and all other documents, instruments and
agreements executed and/or delivered in connection therewith, shall remain
in
full force and effect, and are hereby ratified and confirmed.
(c) Except
as
expressly provided herein, the execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of the
Agents or the Lenders, nor constitute a waiver of any provision of the Credit
Agreement or any other documents, instruments and agreements executed and/or
delivered in connection therewith.
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9. GOVERNING
LAW.
THIS
AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE OTHER
REMAINING TERMS OF THE CREDIT AGREEMENT AND THE INTERNAL LAWS (AS OPPOSED TO
CONFLICT OF LAW PROVISIONS) OF THE STATE OF NEW YORK.
10. Paragraph
Headings.
The
paragraph headings contained in this Amendment are and shall be without
substance, meaning or content of any kind whatsoever and are not a part of
the
agreement among the parties hereto.
11. Counterparts.
This
Amendment may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
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IN
WITNESS WHEREOF. this Amendment has been duly executed as of
the
day and year first above written.
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THE
BORROWERS:
|
AboveNet,
Inc., a Delaware corporation
|
|
|
By:
|
/s/ Xxxxxx Xxxxxx | |
|
Name:
|
Xxxxxx Xxxxxx | |
|
Title:
|
SVP and General Counsel | |
|
AboveNet
Communications, Inc., a
Delaware
corporation
|
||
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By:
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/s/ Xxxxxx Xxxxxx | |
|
Name:
|
Xxxxxx Xxxxxx | |
|
Title:
|
SVP and General Counsel | |
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AboveNet
of Utah, LLC,
|
||
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by
AboveNet Communications, Inc.,
|
||
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its
sole member
|
||
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By:
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/s/ Xxxxxx Xxxxxx | |
|
Name:
|
Xxxxxx Xxxxxx | |
|
Title:
|
SVP and General Counsel | |
|
AboveNet
of VA, LLC,
|
||
|
by
AboveNet Communications, Inc.,
|
||
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its
sole member
|
||
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By:
|
/s/ Xxxxxx Xxxxxx | |
|
Name:
|
Xxxxxx Xxxxxx | |
|
Title:
|
SVP and General Counsel | |
|
AboveNet
International, Inc., a Delaware
corporation
|
||
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By:
|
/s/ Xxxxxx Xxxxxx | |
|
Name:
|
Xxxxxx Xxxxxx | |
|
Title:
|
SVP and General Counsel | |
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ADMINISTRATIVE
AGENT:
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SOCIETE
GENERALE,
|
|
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as
Administrative Agent
|
||
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By:
|
/s/ Xxxxxx Xxxxx | |
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Name:
|
Xxxxxx Xxxxx | |
|
Title:
|
Director | |
-7-
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DOCUMENTATION
AGENT:
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CIT
LENDING SERVICES CORPORATION,
|
|
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as
Documentation Agent
|
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By:
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/s/ Xxxxxxx Xxxxxxx | |
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Name:
|
Xxxxxxx Xxxxxxx | |
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Title:
|
Vice President | |
-8-
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LENDERS:
|
SOCIETE
GENERALE
|
|
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By:
|
/s/ Xxxxxx Xxxxx | |
|
Name:
|
Xxxxxx Xxxxx | |
|
Title:
|
Director | |
-9-
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CIT
LENDING SERVICES CORPORATION
|
|
|
By:
|
/s/ Xxxxxxx Xxxxxxx |
|
Name:
|
Xxxxxxx Xxxxxxx |
|
Title:
|
Vice President |
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