Exhibit 10.2.1
AMENDMENT NO. 1 TO THE CREDIT AGREEMENT
This Amendment No. 1 (the "Amendment"), dated as of February 12, 1999,
is to the Credit Agreement (the "Credit Agreement") dated as of September 4,
1998 among CGX Communications, Inc., a Delaware corporation, CAIS, Inc., a
Virginia corporation, Cleartel Communications, Inc., a District of Columbia
corporation, CAIS Limited Partnership, a Virginia limited partnership, Cleartel
Communications Limited Partnership, a District of Columbia limited partnership,
the shareholders, partners and other owners listed on Schedule A thereto, the
lenders named on the signature pages thereto and ING (U.S.) Capital Corporation,
New York, New York, as agent for the Lenders. Capitalized terms, unless
otherwise defined herein, shall have the meaning set forth in the Credit
Agreement.
The parties hereto agree to amend the Credit Agreement, effective from
and as of the date hereof, as follows:
Section 1. Amendments to Credit Agreement.
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1.1 Cleartel, Cleartel LP and CAIS LP are hereby released from and,
as of the date hereof, shall no longer be parties to the Credit Agreement. As
such, the first paragraph of the Credit Agreement is hereby amended by deleting
any and all references to Cleartel, Cleartel LP and CAIS LP. All obligations of
the released parties shall vest in CAIS Internet.
1.2 The Credit Agreement is further amended pursuant to (a) CGX's
change of its name to CAIS Internet: (i) the first paragraph is amended by
deleting the reference to "CGX Communications, Inc., a Delaware corporation
("CGX")" and inserting "CAIS Internet, Inc., a Delaware corporation ("CAIS
Internet")" in lieu thereof and by deleting the reference to "CGX" in the
seventh line and inserting "CAIS Internet" in lieu thereof; and (ii) the
reference to "CGX" shall be deemed to be a reference to "CAIS Internet" in
Sections 5.1(i) (last paragraph); and (b) ING (U.S.) Capital Corporation's
change of its name to ING (U.S.) Capital LLC: the first paragraph and Sections
7.5 and 8.2 are hereby amended by deleting references to "ING (U.S.) Capital
Corporation" and inserting "ING (U.S.) Capital LLC" in lieu thereof.
1.3 Section 2A.1 is hereby amended by changing the following
parenthetical text in the second line thereof: "(March 4, 1999)" to "(September
4, 1999)."
1.4 Section 2A.5 is hereby amended by deleting this section in its
entirety and inserting the following text in lieu thereof:
"2A.5 Extension Fee. Any extension of the Maturity Date beyond
March 4, 1999 shall not be effective unless the Issuers shall have paid the
Agent, on or before March 4, 1999, an extension fee in an amount equal to
three (3.0)% of the Aggregate Commitment."
1.5 Section 2A.9(xii) is hereby amended by deleting this subsection
in its entirety.
1.6 Section 4.1(d) is hereby amended by (i) deleting the following
parenthetical text: "(and other than in respect of the RFC Collateral)" in the
fifth line of subsection (iii) thereof; (ii) deleting the following
parenthetical text from the eighth, ninth and tenth lines of subsection (iii)
thereof: "(other than (A) in respect of RFC Collateral and (B) in respect of
the First Union Loan Agreement, which Lien, in the case of (B), shall be
released on the Closing Date);" and (iii) deleting "and other than in respect of
RFC Collateral" from the ninth and tenth lines of subsection (iv) thereof.
1.7 Section 4.1(k) is hereby amended by changing the reference to
"CGX Communication, Inc. 401(k) Retirement Savings Plan" to "CAIS Internet, Inc.
401(k) Retirement Savings Plan."
1.8 Section 4.1(n)(ii) is hereby amended by deleting the two
parenthetical provisions referring to the RFC Collateral.
1.9 Section 5.1(e) is hereby amended by deleting the following
parenthetical text: "(other than, for as long as the obligations under the
Receivables Sale Agreement are outstanding, the RFC Collateral, as to which a
second-priority Lien shall be created, attached perfected and enforceable)."
1.10 Section 5.1(o) is hereby amended by replacing the following text
from the eighth and ninth lines thereof: ", except that in the case of Xx.
Xxxxx, such pledge shall occur on or before the Restructuring Date" with ",
provided, however, that R. Xxxxxxxx Xxxxx and CAIS-Sandler Partners, L.P. shall
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not be required to pledge any Capital Stock pursuant to this Section 5.1(o)" in
lieu thereof.
1.11 Section 5.2 (c) is hereby amended by deleting subsection (vi)
thereof and renumbering subsection (vii) to (vi).
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1.12 Section 5.2(d) is hereby amended by deleting subsection (iv) and
renumbering the remaining subsections.
1.13 Section 5.2(k) is hereby deleted in its entirety and Section
5.2(l) is hereby changed to Section 5.2(k).
1.14 Section 6.1(e) is hereby amended by deleting the following
parenthetical text: "(or second-priority Liens in respect of the RFC
Collateral)."
1.15 Section 6.2(b) is hereby amended by changing the date in the
parenthetical text to "September 4, 1999."
1.16 Schedule B is hereby replaced by the attached Schedule B.
1.17 Schedule C is hereby replaced by the attached Schedule C.
1.18 Schedule X is hereby amended as follows:
(a) The definition of "Agent" is amended by replacing "ING (U.S.)
Capital Corporation" with "ING (U.S.) Capital LLC."
(b) The definition of "Borrowers" is amended by deleting the following
text from the second and third lines: ", and on and after the date of the
Restructuring means Cleartel and CAIS, successors to Cleartel and CAIS."
(c) The definition of "Conversion Date" is amended by deleting "March
4, 1999" and inserting "September 4, 1999" in lieu thereof.
(d) The definition of "Guarantor" is changed to mean "CAIS Internet,
Inc., and any other Person that becomes a party to the Guaranty."
(e) The definition of "Information Memorandum" is hereby amended to
refer to the Information Memorandum dated November 1998 referencing the issuance
of $11.5 million in Series A Preferred Stock by CAIS Internet.
(f) The definition of "Interest Payment Date" is hereby amended by
changing the reference to "2.3(c)" to "2.3(d)."
(g) The definition of "Issuer" is amended by deleting "Cleartel, CAIS"
from the second line and inserting "CAIS Internet" in lieu thereof.
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(h) The definition of "Maturity Date" is amended by deleting "March 4,
1999" and inserting "September 4, 1999" in lieu thereof.
(i) The definition of "Patent Security Agreement" is hereby added to
Schedule X as "the Patent Security Agreement dated as of the date hereof among
CAIS Internet, Inc. and ING (U.S.) Capital LLC."
(j) The definition of "Shareholder Promissory Notes" is amended by
deleting subsection (i) in its entirety and inserting the following text in lieu
thereof:
"(i) Promissory Note dated January 6, 1999 from CAIS Internet to
Xxxxxxx X. Xxxxx, Xx. in the original principal amount of $1,000,000;"
(k) The definition of "Subordination Agreement" is hereby deleted in
its entirety.
Section 2. Representations and Warranties.
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2.1 CAIS Internet, Inc., Cleartel Communications, Inc. and CAIS, Inc.
hereby confirm that all representations and warranties of the Borrowers,
Guarantors and Obligors contained in the Credit Documents are true, correct and
complete in all material respects immediately prior to the date of this
Amendment (and after giving effect thereto, under the circumstances as hereby
amended) to the same extent as though made on and as of such date.
2.2. CAIS Internet, Inc., Cleartel Communications, Inc. and CAIS,
Inc. hereby confirm that, except as disclosed in the Information Memorandum, no
act, event or circumstance shall have occurred with respect to the Borrowers,
the Guarantors, the Obligors or their Subsidiaries or otherwise which has had or
would reasonably be expected to have a Material Adverse Effect.
2.3 CAIS Internet, Inc., Cleartel Communications, Inc. and CAIS, Inc.
hereby confirm that there is no pending or, to the knowledge of the Borrowers,
the Guarantors and Obligors, threatened litigation, investigation or other
proceeding which would reasonably be expected to have a Material Adverse Effect.
2.4 CAIS Internet, Inc., Cleartel Communications, Inc. and CAIS, Inc.
hereby confirm that the Borrowers, the Guarantors and the Obligors are in
compliance with all of the covenants and agreements in Credit Documents on and
as of the date hereof, after giving effect to this Amendment and any other
amendments to such Credit Documents entered into on the date hereof.
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Section 3. Ratification and Confirmation. Except as expressly herein
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amended, the Credit Agreement (including Schedule X) is ratified and confirmed
in all respects and shall remain in full force and effect in accordance with its
terms. Each reference in the Credit Documents, the Warrant Agreement and the
Warrant Registration Rights Agreement or in any other documents delivered in
connection therewith to the Credit Agreement shall (unless otherwise
specifically provided) mean the Credit Agreement as amended by this Amendment,
and as hereafter amended or restated.
Section 4. Governing Law. This Amendment will be governed by, and
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construed in accordance with, the Laws of the State of New York, other than (to
the greatest extent permissible by law) the conflict of laws principles that
would apply the Laws of another jurisdiction.
Section 5. Counterparts. This Amendment may be executed in any
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number of counterparts and by the different parties thereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties, intending to be legally bound, have
caused this Amendment to be signed on the date first above written.
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CAIS Internet, Inc. (successor-in-interest to CGX
Communications, Inc.)
By:
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Name:
Title:
Address:
0000 00xx Xx. XX
Xxxxxxxxxx, X.X. 00000
CAIS, Inc.
By:
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Name:
Title:
Address:
0000 Xxx Xxxxxx
XxXxxx, XX 00000
Cleartel Communications, Inc. (consenting only to the
release from its obligations hereunder and its status
as a party to the Credit Agreement)
By:
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Name:
Title:
Address:
0000 00xx Xx. XX
Xxxxxxxxxx, X.X. 00000
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LENDERS:
ING (U.S.) Capital LLC
By:
By:
----------------------------------------------
Name:
Title:
Address:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
AGENT:
ING (U.S.) Capital LLC
By:
By:
----------------------------------------------
Name:
Title:
Address:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
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OWNERS:
XXXXXXX X. XXXXX, XX.
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XXXXXXX X. XXXXX, XX
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THE XXXXXXXXX XXXXXXX XXXXX
TRUST
THE XXXXXXX XXXXXXX XXXXX, III
TRUST
THE ALEXANDER XXXXXX XXXXX TRUST
THE XXXXXXX XXXXXX XXXXXXXXX
AUGER, III TRUST
THE XXXXXXXX XXXXXXX XXXXXXXX
XXXXX TRUST
THE XXXXX XXXXXXXXX XXXXX TRUST
THE XXXXXXX-XXXX XXXXX TRUST
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THE CONSTANDINOS XXXXXXX
FRANCISCOS AUGER ECONOMIDES
TRUST
THE XXXXXXXXX XXXXXX XXXXX
ECONOMIDES TRUST
THE CONSTANDINA XXXXXXXXX XXXXX
ECONOMIDES TRUST
By:
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Xxxxx Xxxxx, Trustee
(As to each Trust)
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SCHEDULE B
CGX
CGX Communications
CGX Telecom
CAIS
CAIS Internet
DESKJACK
LANJACK
OverVoice
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SCHEDULE C
Legal Address and Address of the
Principal Place of Business and
Chief Executive Office of the Borrowers,
Guarantors and Obligors
CAIS Internet, Inc.
0000 00xx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
CAIS, Inc.
0000 Xxx Xxxxxx
XxXxxx, XX 00000
Xxxxxxx X. Xxxxx, XX
0000 00xx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxx, Xx.
0000 00xx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Auger Trusts
c/o
Xxxxx Xxxxx
0000 00xx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
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