Exhibit 10.6
FIRST AMENDMENT
TO LOAN DOCUMENTS
THIS FIRST AMENDMENT TO LOAN DOCUMENTS (this "Amendment") is entered
into as of March 31, 2000 among XX.XXX CORP. (the "Borrower"), XX.XXX HOLDINGS,
LIMITED (the "Parent") and the Subsidiaries of the Borrower (individually a
"Guarantor" and collectively the "Guarantors"; the Guarantors, together with the
Borrower, individually a "Loan Party" and collectively the "Loan Parties"),
FIRST UNION NATIONAL BANK, as Administrative Agent (the "Administrative Agent")
for the lenders party to the Credit Agreement defined below (the "Lenders"), the
Lenders and STATE STREET BANK AND TRUST COMPANY, as Corporate Trustee and
XXXXXXX XXXXXXX, as Individual Trustee for the Secured Parties pursuant to the
Trust Agreement defined below (the "Trustees"). Capitalized terms used herein
and not otherwise defined herein have the respective meanings given to them in
the Credit Agreement and that certain Trust Agreement, dated as of October 29,
1999, among the Borrower and the Trustees (the "Trust Agreement").
RECITALS
WHEREAS, the Borrower, the Administrative Agent and the Lenders are
parties to that certain Credit Agreement dated as of October 29, 1999 (as
amended, modified, supplemented or restated to date, the "Credit Agreement");
WHEREAS, in connection with the Credit Agreement, the parties hereto
have entered into various Loan Documents; and
WHEREAS, the parties to each of the Loan Documents set forth on
Schedule 1 attached hereto have agreed to amend each such Loan Document on the
terms and subject to the conditions contained in this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
I. AMENDMENTS TO LOAN DOCUMENTS
1.1 Each of the Loan Documents set forth on Schedule 1 attached hereto
are hereby amended in their entirety to read in the form of such Loan Documents
attached to this Amendment.
1.2 Each of the parties hereto acknowledge that, pursuant to an
Assignment, Acceptance, Resignation and Appointment Agreement (the "Lucent/First
Union Assignment Agreement") dated as of the date hereof between Lucent
Technologies Inc. ("Lucent") and First Union National Bank ("First Union"),
Lucent has assigned, and First Union has assumed, all of
Lucent's obligations as a Lender, Lucent has resigned as Administrative Agent
and Syndication Agent under the Loan Documents and First Union has been
appointed as the successor Administrative Agent. All references to the
Administrative Agent in each of the Loan Documents and all other documents and
instruments delivered in connection therewith are hereby amended to refer to
First Union as Administrative Agent. First Union will appoint a new Syndication
Agent at a later date.
II. CONDITIONS PRECEDENT
2.1 The effectiveness of this Amendment is subject to the satisfaction
of each of the following conditions precedent in a manner acceptable to the
Administrative Agent:
(a) The Administrative Agent shall have received copies of
this Amendment duly executed by the Loan Parties, the Trustees, the
Administrative Agent and the Lenders.
(b) [Intentionally Omitted.]
(c) The Administrative Agent shall have received an executed
promissory note made by the Borrower and payable to the order of First
Union in the principal amount of First Union's Commitments.
(d) The Administrative Agent shall have received an executed
copy of the Lucent/First Union Assignment Agreement.
(e) First Union shall have received the original copy of the
warrant issued to Lucent by the Parent in connection with the Closing
and any assignment documentation requested by First Union in connection
with the transfer of such warrant.
(f) The Administrative Agent shall have received a corporate
organizational chart for the Loan Parties and such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of
the Loan Parties, the authorization of this Amendment and any other
legal matters relating to the Loan Parties, the Loan Documents or this
Amendment.
(g) The Administrative Agent shall have received a letter from
the Trustees addressed to the Administrative Agent acknowledging that
the Trustees hold in their possession all stock and membership
certificates, stock or transfer powers, intercompany notes and other
instruments or chattel paper.
(h) [Intentionally Omitted.]
(i) [Intentionally Omitted.]
(j) The Administrative Agent shall have received a letter from
the Trustees to Nations Institutional Reserves, the securities
intermediary under that certain Securities Account Control Agreement,
dated as of October 29, 1999, among the Borrower, Nations Institutional
Reserves and the Trustees (the "Securities Account Control Agreement"),
instructing Nations Institutional Reserves to direct all future notices
thereunder to First Union instead of Lucent.
(k) The Administrative Agent shall have received an executed
copy of (i) a Consent to Assignment executed by AT&T Corp., pursuant to
which AT&T Corp. consents to the assignment by the Borrower of its
rights under the AT&T Agreement to the Collateral Trustee and (ii) a
Consent to Assignment executed by Lucent, pursuant to which Lucent
consents to the assignment by the Borrower and PF. Net Supply Corp. of
their rights under the Supply Agreement to the Collateral Trustee.
(l) The Administrative Agent shall have received evidence
satisfactory to it that the insurance required by Section 5.07 of the
Credit Agreement is in effect and that the Administrative Agent and the
Collateral Trustee have been named as an additional insured and loss
payee under all insurance policies to be maintained with respect to the
properties of the Borrower constituting Collateral.
(m) The Administrative Agent shall have received an executed
copy of the Fee Letter.
(n) The Administrative Agent shall have received an opinion of
Xxxxxx & Xxxxxxx, counsel for the Loan Parties dated as of the date
hereof and addressed to the Administrative Agent and the Lenders, in
form and substance satisfactory to the Administrative Agent.
(o) The Administrative Agent shall have received an executed
copy of a waiver letter from the Trustees and the Required Secured
Parties (as defined in the Trust Agreement) waiving the requirement
that a legal opinion be delivered by the Borrower in connection with
the amendments to the Trust Agreement pursuant to Section 1.1 hereof,
in form and substance satisfactory to the Trustees and the
Administrative Agent.
(p) The Lenders shall have received and approved the Business
Plan and there shall have been no material adverse changes in the
Business Plan compared to the information disclosed to the Lenders
prior to the date of execution of this Amendment.
(q) The Lenders shall have received (i) copies of the all
financial statements required to be delivered by the Borrower since the
Effective Date pursuant to the terms of Section 5.01 of the Credit
Agreement, (ii) updated financial projections for the Borrower and its
Subsidiaries which take into account the Touch America Swap Agreement
and (iii) with respect to the Borrower and the Parent, an unaudited
consolidated balance sheet of such Person and its consolidated
subsidiaries as of January 31, 2000.
(r) The Administrative Agent shall have received a certificate
of the Borrower dated as of October 29, 1999 attaching copies of the
Subscription Agreement, the Bridge Loan Agreement, the Tax Sharing
Agreement, and all agreements and other documents delivered in
connection therewith, and certifying, as to each such agreement and
document, that (i) such copy is true and correct and (ii) in the case
of any such agreement, such agreement is in full force and effect.
(s) The Administrative Agent shall have received a certificate
of the Borrower dated as of October 29, 1999 to the effect that, as of
the date hereof, (i) the AT&T Agreement is in full force and effect,
(ii) the Borrower is in compliance in all respects with the terms and
conditions of the AT&T Agreement, (iii) the Borrower has not taken any
action which could result in the termination by AT&T for cause pursuant
to Section 29.11 of the AT&T Agreement, and (iv) none of the parties to
the AT&T Agreement is in default under or with respect to any
obligation thereunder which default could reasonably be expected to
have a Material Adverse Effect.
(t) The Administrative Agent shall have received evidence that
the lenders party to the Bridge Loan Agreement have consented to the
terms and conditions of this Amendment.
(u) The Administrative Agent shall have received copies of all
amendments, modifications or waivers to the Existing Agreements.
(v) The Administrative Agent and First Union shall be
satisfied that all fees and other amounts due and payable to them
hereunder, under the Fee Letter and in connection with the Lucent/First
Union Assignment Agreement, including, to the extent invoiced,
reimbursement or payment of all expenses required to be reimbursed or
paid by the Borrower hereunder or under any other Loan Document, have
been paid or will be paid on the date hereof.
(w) All other documents and legal matters in connection with
the transactions contemplated by this Amendment shall be reasonably
satisfactory to the Administrative Agent and its counsel.
III. MISCELLANEOUS
3.1 The terms "Credit Agreement," "Trust Agreement," "Initial Security
Documents," "Initial Guarantee" and "Indemnity and Contribution Agreement" as
used in each of the Loan Documents and any other documents or instruments
executed in connection therewith shall hereafter mean the Credit Agreement,
Trust Agreement, Initial Security Documents, Initial Guarantee and Indemnity and
Contribution Agreement as amended by this Amendment.
3.2 Each of the Loan Parties represents and warrants as follows:
(a) It has taken all necessary action to authorize the
execution, delivery and performance of this Amendment.
(b) This Amendment has been duly executed and delivered by
such Loan Party and constitutes such Loan Party's legal, valid and
binding obligations, enforceable in accordance with its terms, except
as such enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(c) No consent, approval, authorization or order of, or
filing, registration or qualification with, any court or governmental
authority or third party is required in connection with the execution,
delivery or performance by such Loan Party of this Amendment.
(d) No unwaived event has occurred and is continuing which
constitutes a Default or an Event of Default under the Credit Agreement
as amended by this Amendment.
3.3 Each Loan Party hereby ratifies the Loan Document(s) to which it is
a party and acknowledges and reaffirms (a) that it is bound by all terms of such
Loan Document(s) (as amended hereby) applicable to it and (b) that it is
responsible for the observance and full performance of its respective
Obligations under such Loan Document(s).
3.4 The parties hereto acknowledge and agree that this Amendment shall
constitute a Loan Document.
3.5 This Amendment shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
3.6 Except as amended hereby, the Credit Agreement and all other Loan
Documents shall continue in full force and effect.
3.7 This Amendment may be executed in any number of counterparts, each
of which when so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. Delivery of executed
counterparts of this Amendment by telecopy shall be effective as an
original and shall constitute a representation that an original shall be
delivered.
3.8 Any provision of this Amendment held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity, illegality or unenforceability without
affecting the validity, legality and enforceability of the
remaining provisions hereof; and the invalidity of a particular provision in a
particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
3.9 THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. The provisions of the Credit Agreement regarding
jurisdiction, venue, service of process and waiver of jury trial are hereby
incorporated by reference, mutatis mutandis.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed and delivered by their proper and duly
authorized officer as of the day and year first above written.
BORROWER: XX.XXX CORP.
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Member of Executive Committee
STATE OF NEW YORK )
) :ss:
COUNTY OF NEW YORK )
On the 20th day of March 2000, before me personally came Xxxxxxx Xxxxx,
to me personally known and known to me to be the person described in and who
executed the foregoing instrument as Member of Executive Committee of XX.Xxx
Corp., who, being by me duly sworn, did depose and say that he resides at New
York City, that he is the Member of Executive Committee of XX.Xxx Corp., one of
the corporations described in and which executed the foregoing instrument; that
said instrument was signed on behalf of said corporation by resolution of its
Board of Directors; that he signed his name thereto by like resolution; and that
he acknowledged said instrument to be the free act and deed of said corporation.
/s/ Xxxxx May Xxxxxx
Xxxxx May Posner
Notary Public State of New York
No. 00-0000000
Qualified in Queens County
Commission Expires Dec. 14 2000
PARENT: XX.XXX HOLDINGS, LIMITED
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Authorized Signatory
GUARANTORS: XX.XXX SUPPLY CORP.
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Authorized Signatory
XX.XXX CONSTRUCTION CORP.
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Authorized Signatory
XX.XXX NETWORK SERVICES CORP.
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Authorized Signatory
XX.XXX PROPERTY CORP.
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Authorized Signatory
XX.XXX VIRGINIA, LLC
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Vice President
XX.XXX VIRGINIA CORP.
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Vice President
TRUSTEES: STATE STREET BANK AND TRUST COMPANY,
not individually but solely as Corporate Trustee
By: /s/ Xxxxxxx E, Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
/s/ Xxxxxxx Xxxxxxx
XXXXXXX XXXXXXX, as Individual Trustee
XXXXX XXXXXX XXXX XXX XXXXX XXXXXXX
XXXXX XX XX )
):ss:
COUNTY OF Suffolk )
On the 24th day of March, 2000, before me personally came Xxxxxxx X.
Xxxxxxx, to me personally known and known to me to be the person described in
and who executed the foregoing instrument as Assistant Vice President of State
Street Bank and Trust Company, a Massachusetts trust company, by me duly sworn,
did depose and say that he/she resides at Boston, MA ; that he/she is Assistant
Vice President of State Street Bank and Trust Company; that he/she knows the
seal of said entity, if any; that the seal affixed to said instrument, if any,
is such seal; that said instrument was signed and sealed on behalf of said
entity in accordance with its by-laws; that he/she signed his/her name thereto
by like order; and that he/she acknowledged said instrument to be the free act
and deed of said entity.
[NOTARIAL SEAL]
Xxxx X. Xxxxxxxx
Notary Public
My Commission Expires November 24, 2006
/s/ Xxxx X. Xxxxxxxx
INDIVIDUAL TRUSTEE
STATE OF MA )
):ss:
COUNTY OF Suffolk )
On the 24th day of March, 2000, before me personally came Xxxxxxx X.
Xxxxxxx, to me personally known who, being by me duly sworn, did depose and say
that he resides in Boston; and that said instrument is his free act and deed.
[NOTARIAL SEAL]
Xxxx X. Xxxxxxxx
Notary Public
My Commission Expires November 24, 2006
/s/ Xxxx X. Xxxxxxxx
ADMINISTRATIVE
AGENT AND
LENDERS: FIRST UNION NATIONAL BANK,
individually in its capacity as a Lender
and in its capacity as Administrative Agent
By: /s/ Magregor Hyde
Name: Magregor X. Xxxx
Title: Director
Schedule 1 to
First Amendment
To Loan Documents
(a) Credit Agreement;
(b) Trust Agreement;
(c) Pledge Agreement (Parent), dated as of October 29, 1999, entered
into by the Parent in favor of the Trustees;
(d) Pledge Agreement (Borrower), dated as of October 29, 1999, entered
into by the Borrower in favor of the Trustees;
(e) Pledge Agreement (Subsidiary), dated as of October 29, 1999,
entered into by XX.Xxx Network Services Corp. in favor of the Trustees;
(f) Security Agreement (Borrower), dated as of October 29, 1999,
entered into by the Borrower in favor of the Trustees;
(g) Security Agreement (Subsidiary), dated as of October 29, 1999,
entered into by XX.Xxx Supply Corp. in favor of the Trustees;
(h) Security Agreement (Subsidiary), dated as of October 29, 1999,
entered into by XX.Xxx Construction Corp. in favor of the Trustees;
(i) Guarantee and Subordination Agreement, dated as of October 29,
1999, entered into by the Guarantors in favor of the Trustees;
(j) Indemnity, Subrogation and Contribution Agreement, dated as of
October 29, 1999, among the Loan Parties and the Collateral Trustee;
(k) Patent Security Agreement, dated as of October 29, 1999, entered
into by the Borrower in favor of the Trustees;
(l) Patent Security Agreement, dated as of October 29, 1999, entered
into by XX.Xxx Supply Corp. in favor of the Trustees;
(m) Patent Security Agreement, dated as of October 29, 1999, entered
into by XX.Xxx Construction Corp. in favor of the Trustees;
(n) Copyright Security Agreement, dated as of October 29, 1999, entered
into by the Borrower in favor of the Trustees;
(o) Copyright Security Agreement, dated as of October 29, 1999, entered
into by XX.Xxx Supply Corp. in favor of the Trustees;
(p) Copyright Security Agreement, dated as of October 29, 1999, entered
into by XX.Xxx Construction Corp. in favor of the Trustees;
(q) Trademark Security Agreement, dated as of October 29, 1999, entered
into by the Borrower in favor of the Trustees;
(r) Trademark Security Agreement, dated as of October 29, 1999, entered
into by XX.Xxx Supply Corp. in favor of the Trustees; and
(s) Trademark Security Agreement, dated as of October 29, 1999, entered
into by XX.Xxx Construction Corp. in favor of the Trustees.
