Exhibit 10.1
AMENDMENT NO. 1
TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT (this "Amendment")
is entered into as of April 10, 2003, by and between EQUINOX BUSINESS CREDIT
CORP., a New Jersey corporation ("Lender"), and FASTNET CORPORATION, a
Pennsylvania corporation ("Fastnet"), NETAXS CORP., a Pennsylvania corporation
("Netaxs"), NETREACH, INC., a Pennsylvania corporation ("Netreach"), DASLIC
HOLDINGS COMPANY , a Delaware corporation ("Daslic"), SUPERNET INC., a New
Jersey corporation ("Supernet"), FASTNET ACQUISITION CORP., a Pennsylvania
corporation ("FAC") and FASTNET ACQUISITION, INC., a Delaware corporation
("FAI") (each a "Borrower" and jointly and severally "Borrowers").
BACKGROUND
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Borrowers and Lender are parties to a Loan and Security Agreement dated
as of April 8, 2003 (as amended, supplemented or modified from time to time, the
"Loan Agreement") pursuant to which Lender provides Borrowers with certain
financial accommodations.
Borrowers and Lender have agreed to amend the Loan Agreement on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS. All capitalized terms not otherwise defined herein
shall have the meanings given to them in the Loan Agreement.
2. AMENDMENT TO LOAN AGREEMENT. Subject to satisfaction of the
conditions precedent set forth in Section 3 below, Section 1 of the Loan
Agreement is hereby amended as follows:
(a) The defined term "Accounts Availability" is amended
in its entirety to provide as follows:
"ACCOUNTS AVAILABILITY" means the amount of Revolving
Credit Advances against Eligible Accounts Lender may
from time to time make available to Borrowers up to
seventy five percent (75%) of the net face amount of
Borrowers' Eligible Accounts."
(b) Paragraphs (h) and (r) of the defined term "Eligible
Accounts" are amended in their entirety to provide as follows:
"(h) Less than fifty percent (50%) of the unpaid
amount of invoices due from such Account Debtor
remain unpaid more than ninety days from invoice
date;
(r) The total unpaid Accounts from such Account
Debtor does not exceed twenty percent (20%) of all
Eligible Accounts (it being understood that only the
excess of such Eligible Receivables over such twenty
percent (20%) threshold shall be deemed ineligible
pursuant to this clause);"
3. CONDITIONS OF EFFECTIVENESS. This Amendment shall become effective
(the "Effective Date") upon receipt by Lender of this Agreement duly executed by
Borrowers and in form and substance satisfactory to Lender and its counsel.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS. Borrowers hereby
represent, warrant and covenant as follows:
(a) This Amendment and the Loan Agreement, as amended hereby,
constitute legal, valid and binding obligations of Borrowers and are enforceable
against Borrowers in accordance with their respective terms.
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(b) Upon the effectiveness of this Amendment, Borrowers hereby
reaffirm all covenants; representations and warranties made in the Ancillary
Agreements to the extent the same are not amended hereby and agree that all such
covenants, representations and warranties shall be deemed to have been remade as
of the Effective Date.
(c) No Event of Default or Default has occurred and is
continuing or would exist after giving effect to this Amendment.
(d) Borrowers have no defense, counterclaim or offset with
respect to the Loan Agreement or the Ancillary Agreements.
5. EFFECT ON THE LOAN AGREEMENT.
(a) Upon the effectiveness of this Amendment, each reference
in the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of like import shall mean and be a reference to the Loan Agreement as
amended hereby.
(b) Except as expressly provided herein, the Loan Agreement
and the Ancillary Agreements shall remain in full force and effect in accordance
with their respective terms, and this Amendment shall not be construed to:
(i) Impair the validity, perfection or priority of
any lien or security interest securing the Obligations; or
(ii) Waive or impair any rights, powers or remedies
of Lender under, or constitute a waiver of, any provision of the Loan Agreement
or the Ancillary Agreements.
6. GOVERNING LAW. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns and
shall be governed by and construed in accordance with the laws of the State of
New Jersey.
7. HEADINGS. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
8. COUNTERPARTS; TELECOPY SIGNATURES. This Amendment may be executed by
the parties hereto in one or more counterparts, each of which shall be deemed an
original and all of which taken together shall constitute one and the same
agreement. Any signature delivered by a party via telecopier shall be deemed to
be an original signature hereto.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first written above.
FASTNET CORPORATION
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Chief Financial Officer
NETAXS CORP.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Treasurer
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NETREACH, INC.
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
Title: Treasurer
DASLIC HOLDINGS COMPANY
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
Title: Treasurer
SUPERNET INC.
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
Title: Treasurer
FASTNET ACQUISITION CORP.
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
Title: Treasurer
FASTNET ACQUISITION, INC.
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
Title: Treasurer
EQUINOX BUSINESS CREDIT CORP.
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
Title: Treasurer
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