EXHIBIT 10.41
SECOND AMENDMENT, dated as of July 28, 2000 (this "Second Amendment"),
between FIBERNET TELECOM GROUP, INC., a Delaware corporation (the "Borrower"),
and DEUTSCHE BANK AG NEW YORK BRANCH, as administrative agent (in such capacity,
the "Administrative Agent") for the financial institutions party to the Credit
Agreement (as defined below) as lenders (collectively, the "Lenders"), to the
CREDIT AGREEMENT, dated as of April 11, 2000 and amended as of July 14, 2000
(the "Credit Agreement"), among the Borrower, the Lenders, the Administrative
Agent, and DEUTSCHE BANK SECURITIES INC. and TORONTO DOMINION (TEXAS), INC, as
co-syndications agents for the Lenders.
RECITALS
WHEREAS the Borrower wishes to make certain amendments to the Credit
Agreement, which are more particularly described herein.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and the mutual
agreements herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
ARTICLE I.
DEFINITIONS
Capitalized terms used but not otherwise defined herein shall have the
meanings given to such terms in the Credit Agreement.
ARTICLE II.
AMENDMENTS
Section 2.5.B.(iii)(b) of the Credit Agreement is amended by replacing
the words "first $26 million" in the twelfth line thereof with the words "first
$50 million".
ARTICLE III.
MISCELLANEOUS
Section 3.01 Execution of this First Amendment; Effectiveness.
This Second Amendment is executed and shall be construed as an
amendment to the Credit Agreement, and, as provided in the Credit Agreement,
this Second Amendment forms a part thereof.
Section 3.02 Representations and Warranties.
The Borrower hereby represents and warrants to the Administrative
Agent, the Lead Agents and the Lenders that (a) all consents, approvals and
authorizations necessary for the Borrower's execution, delivery and performance
of this Second Amendment have been obtained or made and (b) this Second
Amendment has been duly executed and delivered by the Borrower
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and constitutes a legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms.
Section 3.03 Waiver.
This Second Amendment is made in amendment and modification of, but not
extinguishment of, the obligations set forth in the Credit Agreement and the
other Loan Documents and, except as specifically modified pursuant to the terms
of this Second Amendment, the terms and conditions of the Credit Agreement and
the other Loan Documents remain in full force and effect. Nothing herein shall
limit in any way the rights and remedies of the Administrative Agent and the
Lenders under the Credit Agreement and the other Loan Documents. The execution
and delivery by the Lenders of this Second Amendment shall not constitute a
waiver, forbearance or other indulgence with respect to any Potential Event of
Default or Event of Default now existing or hereafter arising.
Section 3.04 Counterparts; Integration; Effectiveness.
This Second Amendment may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single
contract. This Second Amendment and any agreements referred to herein constitute
the entire contract among the parties hereto relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. This Second Amendment shall
become effective when it shall have been executed by each of the Borrower and
the Administrative Agent and when the Administrative Agent shall have received
the written consent of the Majority Lenders to the entering into of this Second
Amendment, and thereafter shall be binding upon and inure to the benefit of the
parties hereto and, subject to and in accordance with Section 9.16 of the Credit
Agreement, their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Second Amendment by telecopy shall be as
effective as delivery of a manually executed counterpart of this Second
Amendment.
Section 3.05 Severability.
Any provision of this Second 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.
Section 3.06 Governing Law.
This Second Amendment shall be construed in accordance with and
governed by the laws of the State of New York without regard to the conflicts of
law provisions thereof, other than Sections 5-1401 and 5-1402 of the General
Obligations Law of the State of New York.
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Section 3.07 Headings.
Article and Section headings and the Table of Contents used herein are
for convenience of reference only, are not part of this Second Amendment and
shall not affect the construction of, or be taken into consideration in
interpreting, this Second Amendment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed by their respective authorized officers as of the
day and year first above written.
FIBERNET TELECOM GROUP, INC.
By: /s/ Xxx X. XxXxxx
-----------------------------------
Name: Xxx X. XxXxxx
Title: Vice President - Finance
DEUTSCHE BANK AG NEW YORK
BRANCH, as Administrative Agent
By: /s/ Xxxxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Assistant Vice President
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Associate
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