EXHIBIT 10.40
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FIRST AMENDMENT AND CONSENT
Dated as of
July 14, 2000
to
THE CREDIT AGREEMENT
Dated as of April 11, 2000
among
FIBERNET TELECOM GROUP, INC.,
as the Borrower,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
DEUTSCHE BANK AG, NEW YORK BRANCH,
as the Administrative Agent,
and
DEUTSCHE BANK SECURITIES INC. and
TORONTO DOMINION (TEXAS), INC.,
as the Co-Syndications Agents
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TABLE OF CONTENTS
ARTICLE I. DEFINITIONS.....................................................2
ARTICLE II. CONSENT .......................................................2
ARTICLE III. AMENDMENTS....................................................2
Section 3.01 Definitions................................................2
Section 3.02 Rules of Construction......................................6
Section 3.03 Prepayments and Unscheduled Reductions in Commitments......6
Section 3.04 SEC Filings, Press Releases and Other Financial Reports....6
Section 3.05 Financial Statements.......................................7
Section 3.06 Matters Related to the Transaction.........................7
Section 3.07 Indebtedness...............................................8
Section 3.08 Financial Covenants........................................8
Section 3.09 Certain Restrictions in Respect of Material Contracts.....12
Section 3.10 Events of Default.........................................12
Section 3.11 Certain Amendments........................................13
ARTICLE IV. MISCELLANEOUS.................................................13
Section 4.01 Execution of this First Amendment; Effectiveness..........13
Section 4.02 Representations and Warranties............................13
Section 4.03 Waiver....................................................13
Section 4.04 Counterparts; Integration; Effectiveness..................14
Section 4.05 Severability..............................................14
Section 4.06 Governing Law.............................................14
Section 4.07 Headings..................................................14
i
FIRST AMENDMENT AND CONSENT, dated as of July 14, 2000 (this "First
Amendment"), among FIBERNET TELECOM GROUP, INC., a Delaware corporation (the
"Borrower"), and the financial institutions party to the Credit Agreement (as
defined below) as of the date hereof as lenders (collectively, the "Lenders") to
the CREDIT AGREEMENT, dated as of April 11, 2000 (the "Credit Agreement"), among
the Borrower, the lenders party thereto, DEUTSCHE BANK AG, NEW YORK BRANCH, as
the administrative agent (the "Administrative Agent"), and DEUTSCHE BANK
SECURITIES INC. and TORONTO DOMINION (TEXAS), INC, as co-syndications agents for
the Lenders.
RECITALS
A. The Borrower has formed three subsidiaries, FiberNet Holdco, Inc.
("Holdco"), FiberNet Merger Sub, Inc. ("FiberNet Merger Sub"), and Devnet Merger
Sub, LLC ("Devnet Merger Sub"). Holdco is a wholly-owned subsidiary of the
Borrower, and each of FiberNet Merger Sub and Devnet Merger Sub is a
wholly-owned subsidiary of Holdco.
B. The Borrower has entered into an Agreement and Plan of
Reorganization, dated June 2, 2000 (the "Agreement"), with Holdco, FiberNet
Merger Sub, Devnet Merger Sub, Devnet L.L.C. ("Devnet") and FP Enterprises
L.L.C. ("FP Enterprises"), pursuant to which, among other things, the parties
have agreed that, in accordance with the terms and conditions set forth therein
(i) FiberNet Merger Sub will merge with and into the Borrower, with the Borrower
continuing as the surviving corporation, (ii) following such merger, such
surviving corporation will change its name to FiberNet Operations, Inc.
("FiberNet Operations") and Holdco will change its name to FiberNet Telecom
Group, Inc., and (iii) Devnet Merger Sub will merge with and into Devnet, with
Devnet continuing as the surviving corporation (the transactions described in
clauses (i), (ii) and (iii) being referred to as the "Transaction").
C. Concurrently herewith, Holdco is entering into (i) a guarantee in
favor of the Administrative Agent, for the benefit of the Secured Parties (as
defined in the Credit Agreement), pursuant to which Holdco is guarantying the
Obligations (as defined in the Credit Agreement) and (ii) a security agreement
in favor of the Administrative Agent, for the benefit of the Secured Parties,
pursuant to which Holdco is granting a security interest in all of the
collateral described therein.
D. The Borrower wishes to obtain the consent of the Lenders to the
Transaction and 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:
1
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.
CONSENT
The Lenders hereby consent to the consummation of the Transaction in
accordance with the terms and conditions set forth in the Agreement and to the
execution and delivery of such related documents and instruments as shall be
necessary in connection with the foregoing.
ARTICLE III.
AMENDMENTS
Section 3.01 Definitions.
(a) The following defined terms are added to Section 1.01 of the Credit
Agreement in their proper alphabetical order:
"BORROWER ACKNOWLEDGEMENT OF OBLIGATIONS" means the Acknowledgement of
Obligations by the Borrower in the form of Exhibit A to the First Amendment.
"DEVNET GUARANTY AGREEMENT" means the Guaranty Agreement between Devnet
and the Administrative Agent, for the benefit of the Secured Parties,
substantially in the form of Exhibit D to the Parent Guaranty Agreement.
"DEVNET SECURITY AGREEMENT" means the Subsidiary Security Agreement
between Devnet and the Administrative Agent, for the benefit of the Secured
Parties, substantially in the form of Exhibit E to the Parent Guaranty
Agreement.
"FIRST AMENDMENT" means the First Amendment and Consent, dated as of
July 14, 2000, among the Borrower and the Lenders party thereto, to the Credit
Agreement, dated as of April 11, 2000, among the Borrower, the Lenders party
thereto, the Administrative Agent and the Co-Syndications Agents.
"PARENT" means FiberNet Holdco, Inc. (to be known, upon consummation of
the Transaction, as FiberNet Telecom Group, Inc.), a Delaware corporation.
"PARENT ACKNOWLEDGEMENT OF OBLIGATIONS" means the Acknowledgement of
Obligations by the Parent in the form of Exhibit F to the Parent Guaranty
Agreement.
"PARENT GUARANTY AGREEMENT" means the Guaranty Agreement, dated as of
July 14, 2000, between the Parent and the Administrative Agent, for the benefit
of the Secured Parties, in form and substance satisfactory to the Administrative
Agent.
2
"PARENT PLEDGE AGREEMENTS" means the Pledge Agreements between the
Parent and the Administrative Agent, for the benefit of the Secured Parties,
substantially in the form of Exhibits A and B to the Parent Guaranty Agreement.
"PARENT SECURITY AGREEMENT" means the Security Agreement, dated as of
July 14, 2000, between the Parent and the Administrative Agent, for the benefit
of the Secured Parties, in form and substance satisfactory to the Administrative
Agent.
"TRANSACTION" has the meaning assigned to such term in Recital B to the
First Amendment.
(b) The definition of "ASSET SALE" is amended by adding the words
"or Devnet or any of its Subsidiaries" after the words "the Borrower or any of
its Subsidiaries" in the first, third and fifth lines thereof.
(c) The definition of "AVAILABLE CASH" is amended by adding the
words "plus all amounts that would, in conformity with GAAP, be included on a
consolidated balance sheet of Devnet and its Subsidiaries as Cash and Cash
Equivalents" after the words "the Borrower and its Subsidiaries as Cash and Cash
Equivalents".
(d) The definition of "CASUALTY PROCEEDS" is amended by adding the
words "or Devnet or any of its Subsidiaries" after the words "the Borrower or
any of its Subsidiaries" in the second line thereof.
(e) The definition of "CHANGE IN CONTROL" is deleted in its
entirety and replaced with the following:
"CHANGE IN CONTROL" means and shall be deemed to have occurred
if (i) there shall have occurred the sale, lease, transfer or other
disposition, in one or a series of related transactions, of (a) all or
substantially all of the assets of the Parent and its Subsidiaries
taken as a whole to any "person" or "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Exchange Act) or (b) 20% or more of
the Capital Stock of the Parent to any such "person" or "group"; (ii)
during any period of twelve consecutive months, individuals who at the
beginning of such period constituted the board of directors of the
Borrower (together with any new directors whose election by such board
or whose nomination for election by the shareholders of the Borrower
was approved by a vote of a majority of the directors then still in
office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved),
cease for any reason to constitute a majority of the board of directors
of the Borrower then in office; (iii) the holders of Capital Stock of
the Parent or any of its Subsidiaries shall approve any plan or
proposal for the liquidation or dissolution of the Parent or any such
Subsidiary; (iv) the Borrower shall cease to own, directly or
indirectly, 100% of the voting and economic interests in FiberNet
Telecom, Inc.; (v) the Borrower shall cease to own, directly or
indirectly, 100% of the voting and economic interests in FiberNet Equal
Access, L.L.C.; (vi) the Borrower shall cease to own, directly or
indirectly, 100% of the voting and economic interests in Local Fiber,
3
L.L.C.; (vii) the Parent shall cease to own, directly or indirectly,
100% of the voting and economic interests in the Borrower; or (viii)
the Parent shall cease to own, directly or indirectly, 100% of the
voting and economic interests in Devnet.
(f) The definition of "COLLATERAL DOCUMENTS" is amended by adding
the words "the Parent Pledge Agreements (following the consummation of the
Transaction), the Parent Security Agreement, the Parent Guaranty Agreement, the
Devnet Security Agreement (following the consummation of the Transaction), the
Devnet Guaranty Agreement (following the consummation of the Transaction),"
after the words "each Control Agreement".
(g) The definition of "CONSOLIDATED CAPITALIZATION" is amended by
adding the words "plus (iv) the aggregate amount of cash equity contributed to
Devnet or any of its Subsidiaries by any Person other than Devnet or any such
Subsidiary, plus (v) Devnet's Consolidated Total Debt," before the words "all as
determined on a consolidated basis in accordance with GAAP".
(h) The definition of "CONSOLIDATED EBITDA" is amended by adding
the words "or Devnet and its Subsidiaries" after the words "the Borrower and its
Subsidiaries" in the seventeenth and eighteenth lines thereof and by adding the
words "Devnet or its Subsidiaries" after the words "the Borrower or its
Subsidiaries" in the thirtieth line thereof.
(i) The definition of "CONSOLIDATED FIXED CHARGE COVERAGE RATIO"
is amended by (i) deleting the words "the Borrower's" from the second line
thereof , (ii) adding the words "of the Borrower and Devnet, taken together,"
after the words "Consolidated EBITDA" in the second line thereof, and (iii)
adding the words "and Devnet and its Subsidiaries" after the words "amounts
actually paid by the Borrower and its Subsidiaries" in the fourth line thereof.
(j) The definition of "CONSOLIDATED FIXED CHARGES" is amended by
(i) deleting the words "the Borrower's" from the second line thereof , (ii)
adding the words "of the Borrower and Devnet, taken together," after the words
"Consolidated Interest Expense" in the second line thereof, (iii) adding the
words ", and Devnet and its Subsidiaries, in each case" after the words
"provision for cash income taxes made by the Borrower or any of its
Subsidiaries" in the third line thereof and (iv) adding the words "and Devnet or
any of its Subsidiaries" after the word "Subsidiaries" in the last line thereof.
(k) The definition of "CONSOLIDATED INTEREST COVERAGE RATIO" is
amended by (i) adding the words ", together with Consolidated EBITDA of Devnet
and its Subsidiaries, in each case" after the words "Consolidated EBITDA of the
Borrower and its Subsidiaries" and (ii) adding the words ", together with
Consolidated Interest Expense of Devnet and its Subsidiaries, in each case"
after the words "Consolidated Interest Expense of the Borrower and its
Subsidiaries".
(l) The definition of "CONSOLIDATED LEVERAGE RATIO" is amended by
deleting the words "the Borrower's" each time that they appear in the second
line thereof and by adding the words "for the Borrower and Devnet, taken
together," after the words "Consolidated EBITDA" in the third line thereof.
4
(m) The definition of "CONSOLIDATED NET INCOME" is amended by (i)
adding the words "or of Devnet and its consolidated Subsidiaries for any period"
after the words "of the Borrower and its consolidated Subsidiaries for any
Period" in the fourth line thereof, and (ii) adding the words "or Devnet" after
the words "of the Borrower" in the sixth line thereof, (iii) adding the words
"or Devnet or any of its Subsidiaries" after the words "of its Subsidiaries" in
the seventh line thereof, (iv) adding the words "or Devnet" before the
parenthetical ")" in the eighth line thereof, (v) adding the words "or Devnet or
any of its Subsidiaries" after the words "the Borrower or any of its
Subsidiaries" in the eighth line thereof, (vi) adding the words ", Devnet" after
the words "received by the Borrower" in the ninth line thereof, and (vii) adding
the words "or Devnet" after the words "earnings of any Subsidiary of the
Borrower" in the eleventh line thereof.
(n) The definition of "CONSOLIDATED TOTAL DEBT" is amended by
adding the words ", together with the aggregate principal amount of all
Indebtedness of Devnet and its Subsidiaries at such date, all" before the words
"as determined on a consolidated basis in accordance with GAAP".
(o) The definition of "CONTROL AGREEMENT" is amended by adding the
words "the Parent, Devnet, a Subsidiary of Devnet," after the words "institution
party thereto".
(p) The definition of "DEVNET" is amended by deleting the comma
(",") between the words "Devnet" and "L.L.C.".
(q) The definition of "MATERIAL CONTRACT" is amended by adding the
words "or Devnet or any of its Subsidiaries" after the word "Subsidiaries" in
the sixth line thereof.
(r) The definition of "NET ASSET SALE PROCEEDS" is amended by
adding the words "or Devnet or any of its Subsidiaries" after the words "the
Borrower or any of its Subsidiaries" in the second and eighth lines thereof.
(s) The definition of "NET LOSS PROCEEDS" is amended by adding the
words "or Devnet or any of its Subsidiaries" after the words "the Borrower or
any of its Subsidiaries" in the second and seventh lines thereof.
(t) The definition of "NET REVENUE" is amended by adding the words
", together with all revenue received by Devnet and any of its Subsidiaries,
that would, in conformity with GAAP, be included on the consolidated income
statement of Devnet as revenue at such date" after the words "as revenue at such
date".
(u) The definition of "NPPE" is amended by adding the words
"together with all plant, property and equipment of Devnet and any of its
Subsidiaries, in each case" after the words "equipment of the Borrower and any
of its Subsidiaries,".
(v) The definition of "PERMITTED INVESTMENTS" is amended by
deleting the word "and" which appears immediately before clause (viii) and by
adding the following clause (ix) immediately prior to the period ("."):
5
"; (ix) loans made by the Borrower to a wholly-owned Subsidiary of the
Borrower, to Devnet or to a wholly-owned subsidiary of Devnet which would be
permitted to be incurred by such borrowing party pursuant to Section 6.1(viii)
hereof or Section 4.2(vii) of the Devnet Guaranty Agreement"
(w) The definition of "PROJECTIONS" is amended by (i) adding the
words "and Devnet and its Subsidiaries" before the words "prepared by the
management" in the second line thereof and (ii) adding the words ", as updated
from time to time in accordance with Section 5.3 hereof" after the word
"Lenders" in the last line thereof.
(x) The definition of "TELECOMMUNICATIONS BUSINESS" is amended by
adding the words "or Devnet or its Subsidiaries" after the word "Subsidiaries"
in the second and eighth lines thereof.
Section 3.02 Rules of Construction.
Section 1.3 of the Credit Agreement is amended by adding the following
section thereto:
"J. Following the consummation of the Transaction, all references
herein and in the other Loan Documents (i) to "FiberNet Telecom Group, Inc."
(other than those deemed to be references to such entity by virtue of clause
(iii) hereof) shall be deemed to be references to "FiberNet Operations, Inc.",
(ii) to "Devnet Merger Sub, Inc." shall be deemed to be references to "Devnet
L.L.C." and (iii) to "FiberNet Holdco, Inc." shall be deemed to be references to
"FiberNet Telecom Group, Inc.", in each case unless the context otherwise
requires (such as a reference to any such entity prior to the consummation of
the Transaction)."
Section 3.03 Prepayments and Unscheduled Reductions in Commitments.
(a) Section 2.5.B.(iii)(a) of the Credit Agreement is amended by
adding the words "or Devnet or any of its Subsidiaries" after the words "the
Borrower or any of its Subsidiaries" in the third line thereof.
(b) Section 2.5.B.(iii)(b) of the Credit Agreement is amended by
adding the words "or Devnet or any of its Subsidiaries" after the words "the
Borrower or any of its Subsidiaries" in the third, seventh and eleventh lines
thereof.
(c) Section 2.5.B.(iii)(c) of the Credit Agreement is amended by
(i) adding the words "or Devnet or any of its Subsidiaries" after the words "the
Borrower or any of its Subsidiaries" in the third line thereof and (ii) adding
the words "or Devnet or any of their respective Subsidiaries" after the words
"applied by the Borrower" in the sixth line thereof.
Section 3.04 SEC Filings, Press Releases and Other Financial Reports.
Section 5.1.(vii) of the Credit Agreement is amended by replacing the
word "Borrower" in the third, sixth, ninth and tenth lines thereof with the word
"Parent".
6
Section 3.05 Financial Statements.
Section 5.1 to the Credit Agreement is amended by adding at the end
thereof the following paragraph:
"Notwithstanding anything to the contrary in this Section 5.1, the
Borrower may, in lieu of delivering the consolidated balance sheets and related
consolidated statements of income, cash flow and stockholders' or members'
equity of the Borrower and its Subsidiaries, the certifications, certificates
and reconciliation statements of the chief financial officer or treasurer of the
Borrower with respect to the Borrower and its Subsidiaries, and the independent
certified public accountant reports with respect to the Borrower and its
Subsidiaries (in each case as more particularly described in Sections 5.1(i)
through (vi)), deliver consolidated balance sheets and related consolidated
statements of income, cash flow and stockholders' or members' equity of the
Parent and its Subsidiaries, certifications, certificates and reconciliation
statements of the chief financial officer or treasurer of the Parent with
respect to the Parent and its Subsidiaries, and independent certified public
accountant reports with respect to the Parent and its Subsidiaries (in each case
as more particularly described in such Sections 5.1(i) through (vi) with respect
to the Borrower and its Subsidiaries, assuming, for such purpose that references
to the Borrower in such sections are deemed to be references to the Parent) as
long as no event has occurred, and no actions have been taken by or on behalf of
the Parent, that would cause such consolidated financial statements of the
Parent and its Subsidiaries (other than the statement of stockholders' equity)
to contain information different than what would be derived by aggregating the
comparable financial statements of the Borrower and its Subsidiaries with those
of Devnet and its Subsidiaries."
Section 3.06 Matters Related to the Transaction.
The following covenant shall be added to Article V to the Credit
Agreement:
"SECTION 5.17. MATTERS RELATED TO THE TRANSACTION.
A. CONSUMMATION OF THE TRANSACTION. Promptly, but in any event not
later than [__] days, following the consummation of the Transaction, the
Borrower shall (i) deliver to the Administrative Agent (a) a secretary's
certificate attaching true, correct and complete copies of the documentation
evidencing such consummation, including documentation evidencing the mergers
comprising the Transaction and the change of name of (x) FiberNet Telecom Group,
Inc. to FiberNet Operations, Inc. and (y) FiberNet Holdco, Inc. to FiberNet
Telecom Group, Inc., and any other material documentation entered into in
connection with the consummation of the Transaction, (b) an opinion of Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo PC substantially in the form of Exhibit B
to the First Amendment, (c) the Borrower Acknowledgement of Obligations, (d) an
amendment to the Borrower Pledge Agreement substantially in the form of Exhibit
C to the First Amendment and (e) corporate documentation ancillary to the
foregoing reasonably requested by the Administrative Agent (such as secretary's
resolutions and incumbency certificates) and (ii) take and cause to be taken all
steps contemplated by Section 5.11 that may be reasonably necessary as a result
of the consummation of the Transaction.
7
B. FAILURE TO CONSUMMATE THE TRANSACTION. If the Transaction shall not
have been consummated by August 24, 2000 the Borrower shall, to the extent not
previously taken, take or cause to be taken all of the actions contemplated by
Sections 5.11 and 6.5.B. with respect to any Subsidiary of the Borrower formed
in contemplation of the Transaction (including FiberNet Holdco, Inc., FiberNet
Merger Sub, Inc. and Devnet Merger Sub, LLC)."
Section 3.07 Indebtedness.
(a) Section 6.1.(iv) of the Credit Agreement is amended by adding
the words ", when taken together with any such debt incurred by Devnet or any of
its Subsidiaries," after the words "such Indebtedness" in the fifth line
thereof.
(b) Section 6.1.(vii) of the Credit Agreement is amended by (i)
deleting the word "with" from the second line thereof and (ii) adding the words
", which, when taken together with all such other Indebtedness of Devnet and its
Subsidiaries, has" after the words "to other Indebtedness" in the second line
thereof.
(c) Section 6.1 of the Credit Agreement is amended by deleting the
word "and" after the semicolon in clause (vi) thereof and by adding the
following clause (viii) immediately prior to the period ("."):
"; and
(viii) any wholly-owned Subsidiary of the Borrower may become liable
with respect to loans made to it by the Borrower as long as (x) such
Indebtedness is evidenced by a promissory note in form and substance reasonably
satisfactory to the Administrative Agent which shall be pledged to the
Administrative Agent pursuant to the Borrower Pledge Agreement and (y) the
proceeds of such loan is used to provide for working capital and general
corporate needs of such Subsidiary or to fund the acquisition of
Telecommunications Assets by such Subsidiary."
Section 3.08 Financial Covenants.
(a) Section 6.6.A. of the Credit Agreement is amended by deleting
the words "the Borrower's" from the third, seventh and eleventh lines thereof.
(b) Section 6.6.B. of the Credit Agreement is amended by (i)
deleting the words "the Borrower's" from the second line thereof and (ii) adding
the words "of the Borrower and Devnet, taken together, after the words
"Consolidated Interest Expense" in the last line thereof.
(c) Section 6.6.C. of the Credit Agreement is amended by (i)
deleting the word "its" from the second line thereof and (ii) deleting the chart
which appears immediately after the words "set forth below:" in the third line
thereof and adding the following chart after the words "set forth below:" in the
third line thereof:
8
MINIMUM CUMULATIVE REVENUE
FROM JANUARY 1, 2000
DATE (IN DOLLARS)
------------------- -------------------------
June 30, 2000 1,105,800
September 30, 2000 5,821,700
December 31, 2000 14,294,300
March 31, 2001 23,234,200
June 30, 2001 33,420,100
September 30, 2001 45,686,100
(d) Section 6.6.D. of the Credit Agreement is amended by (i)
deleting the word "its" from the second line thereof, (ii) adding the words "of
the Borrower and Devnet, taken together," after the words "cumulative
Consolidated EBITDA" in the second line thereof and (iii) deleting the chart
which appears immediately after the words "set forth below:" in the fourth line
thereof and adding the following chart after the words "set forth below:" in the
fourth line thereof:
MINIMUM CUMULATIVE
CONSOLIDATED EBITDA FROM
JANUARY 1, 2000
DATE (IN DOLLARS)
------------------- -------------------------
June 30, 2000 (12,887,200)
September 30, 2000 (19,349,100)
December 31, 2000 (19,427,500)
March 31, 2001 (20,735,700)
June 30, 2001 (21,185,400)
September 30, 2001 (19,739,200)
9
(e) Section 6.6.E. of the Credit Agreement is amended by deleting
the word "the Borrower's" from the third line thereof.
(f) Section 6.6.F. of the Credit Agreement is amended by (i)
deleting the word "its" from the second line thereof, (ii) adding the words "for
the Borrower and Devnet, taken together," after the words "cumulative
Consolidated Capital Expenditures" in the second line thereof and (iii) deleting
the chart which appears immediately after the words "set forth below:" in the
fourth line thereof and adding the following chart after the words "set forth
below:" in the fourth line thereof:
MAXIMUM CUMULATIVE
CONSOLIDATED CAPITAL
EXPENDITURES FROM
JANUARY 1, 2000
DATE (IN DOLLARS)
------------------- -------------------------
June 30, 2000 81,472,200
September 30, 2000 127,851,100
December 31, 2000 168,867,600
March 31, 2001 181,006,000
June 30, 2001 187,602,100
September 30, 2001 203,113,600
(g) Section 6.6.G. of the Credit Agreement is amended by deleting
the chart which appears immediately after the words "set forth below:" in the
second line thereof and adding the following chart after the words "set forth
below:" in the second line thereof:
DATE CONSOLIDATED LEVERAGE RATIO
----------------------- ---------------------------
December 31, 2001 8.8 to 1.0
March 31, 2002 7.0 to 1.0
June 30, 2002 5.5 to 1.0
10
DATE CONSOLIDATED LEVERAGE RATIO
----------------------- ---------------------------
September 30, 2002 4.0 to 1.0
December 31, 2002 3.0 to 1.0
March 31, 2003 2.5 to 1.0
June 30, 2003 2.0 to 1.0
September 30, 2003 2.0 to 1.0
December 31, 2003 2.0 to 1.0
March 31, 2004 2.0 to 1.0
June 30, 2004 2.0 to 1.0
September 30, 2004 2.0 to 1.0
(h) Section 6.6.J. of the Credit Agreement is amended by (i)
deleting the word "its" from the second line thereof, (ii) adding the words "of
the Borrower and Devnet, taken together," after the words "cumulative
Consolidated Capital Expenditures" in the second line thereof and (iii) deleting
the chart which appears immediately after the words "set forth below:" in the
fourth line thereof and adding the following chart after the words "set forth
below:" in the fourth line thereof:
MAXIMUM CUMULATIVE
CONSOLIDATED CAPITAL
EXPENDITURES
FROM JANUARY 1, 2000
DATE (IN DOLLARS)
----------------------- ---------------------------
December 31, 2001 211,148,400
March 31, 2002 224,727,700
June 30, 2002 233,214,700
September 30, 2002 247,602,500
December 31, 2002 256,350,400
March 31, 2003 266,736,400
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MAXIMUM CUMULATIVE
CONSOLIDATED CAPITAL
EXPENDITURES
FROM JANUARY 1, 2000
DATE (IN DOLLARS)
----------------------- ---------------------------
June 30, 2003 273,312,300
September 30, 2003 281,568,200
December 31, 2003 287,064,300
March 31, 2004 293,174,600
June 30, 2004 297,946,700
September 30, 2004 303,834,500
Section 3.09 Certain Restrictions in Respect of Material Contracts.
Section 6.13.C. of the Credit Agreement is deleted in its entirety.
Section 3.10 Events of Default.
(a) Section 7.1 of the Credit Agreement is amended by adding the
words "or the Parent or Devnet or any of its Subsidiaries" after the words
"Borrower or any of its Subsidiaries" in the fifth line thereof.
(b) Section 7.2 of the Credit Agreement is amended by adding the
words "or Devnet or any of its Subsidiaries (i)" after the words "Borrower or
any of its Subsidiaries" in the first line thereof.
(c) Section 7.4 of the Credit Agreement is amended by (i) adding
the words "or (c) Devnet or (d) any Subsidiary of Devnet" after the words
"Subsidiary of the Borrower" in the third line thereof and (ii) adding the words
"or (3) Devnet or (4) any Subsidiary of Devnet" after the words "(2) any
Subsidiary of the Borrower" in the last line thereof.
(d) Section 7.5 of the Credit Agreement is amended by (i) adding
the words "or Devnet or any Subsidiary of Devnet" after the words "Subsidiary of
the Borrower" in the first line thereof and (ii) adding the words "or (c) Devnet
or (d) any Subsidiary of Devnet" after the words "Subsidiary of the Borrower" in
the sixth line thereof .
(e) Section 7.6 of the Credit Agreement is amended by adding the
words "or Devnet or any of its Subsidiaries" after the words "Borrower or any of
its Subsidiaries" in the third, seventh and ninth lines thereof.
(f) Section 7.7 of the Credit Agreement is amended by adding the
words "or Devnet or any of its Subsidiaries" after the words "Borrower or any of
its Subsidiaries" in each place in which such phrase or portion thereof appears
in the second line thereof.
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(g) Section 7.11 of the Credit Agreement is amended by adding the
words "or Devnet or any of its Subsidiaries" after the words "Borrower or any of
its Subsidiaries" in the second line thereof.
(h) Section 7.12 of the Credit Agreement is amended by adding the
words "or Devnet or any of its Subsidiaries" after the words "of its
Subsidiaries" in the first and fourth lines thereof.
(i) Section 7.14 of the Credit Agreement is amended by adding the
words "or Devnet or any of its Subsidiaries" after the words "Borrower or any of
its Subsidiaries" in the second line thereof.
Section 3.11 Certain Amendments.
Section 9.6 of the Credit Agreement is amended by adding the words "or
the Parent" after the words "any Subsidiary Guarantor" in clause (ix) thereof
and by adding the words "or Parent Guaranty Agreement" after the words
"Subsidiary Guaranty Agreement" in clause (ix) thereof.
ARTICLE IV.
MISCELLANEOUS
Section 4.01 Execution of this First Amendment; Effectiveness.
(a) This First Amendment is executed and shall be construed as an
amendment to the Credit Agreement, and, as provided in the Credit Agreement,
this First Amendment forms a part thereof.
(b) The amendments set forth in Sections 3.01(b), (c), (d), (e),
(g), (h), (i), (j), (k), (l), (m), (n), (o), (q), (r), (s), (t), (u), (v), (w),
and (x) and Sections 3.03, 3.04, 3.05, 3.07(a), 3.07(b), 3.08, 3.09 and 3.10,
shall become effective upon the consummation of the Transaction. All other
provisions hereof shall be effective upon the date hereof.
Section 4.02 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 First Amendment have been obtained or made and (b) this First Amendment
has been duly executed and delivered by the Borrower and constitutes a legal,
valid and binding obligation of the Borrower, enforceable against the Borrower
in accordance with its terms.
Section 4.03 Waiver.
This First 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 First Amendment, the terms and conditions of the Credit Agreement and
the other Loan Documents remain in full
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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 consent granted herein is limited strictly to its
terms, shall apply only to the consummation of the Transaction in its entirety,
shall not extent to or effect any of the other obligations of the Borrower or
any other Loan Party under any Loan Document and shall not impair any rights
consequent thereon. The Lenders shall not have any obligation to issue any other
or further consent or waiver with respect to the Transaction or any other
matter. The execution and delivery by the Lenders of this First 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 4.04 Counterparts; Integration; Effectiveness.
This First 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 First 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 First Amendment shall
become effective when it shall have been executed by each of the Borrower and
each of the Lenders listed on the signature pages hereof, 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 First Amendment by telecopy shall be as effective as delivery of a
manually executed counterpart of this First Amendment.
Section 4.05 Severability.
Any provision of this First 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 4.06 Governing Law.
This First 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.
Section 4.07 Headings.
Article and Section headings and the Table of Contents used herein are
for convenience of reference only, are not part of this First Amendment and
shall not affect the construction of, or be taken into consideration in
interpreting, this First Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this First 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 Lender
By: /s/ Xxx X. Xxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Assistant Vice President
TORONTO DOMINION (TEXAS), INC.,
as Lender
By: /s/ Xxxx X. Xxxxx
-----------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
NORTEL NETWORKS INC.,
as Lender
By: /s/ Xxxx X. Day
-----------------------------------------
Name: Xxxx X. Day
Title: VP, Customer Finance
[FIRST AMENDMENT TO THE CREDIT AGREEMENT]
IBM CREDIT CORPORATION,
as Lender
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Manager, Commercial & Specialty
Financing Sales
[FIRST AMENDMENT TO THE CREDIT AGREEMENT]
