Exhibit 99.1
AMENDMENT NO. 1
TO
DEBTOR IN POSSESSION CREDIT, SECURITY AND GUARANTY AGREEMENT
This AMENDMENT NO. 1, dated as of January 26, 2001 (this "Amendment"),
to the Debtor in Possession Credit, Security and Guaranty Agreement, dated as of
January 16, 2001 (the "Credit Agreement"), by and among NORTHPOINT
COMMUNICATIONS, INC., a Delaware corporation (the "Borrower"), NORTHPOINT
COMMUNICATIONS GROUP, INC., a Delaware corporation ("Parent Guarantor"),
NORTHPOINT COMMUNICATIONS OF VIRGINIA, INC., a Virginia corporation, and
NORTHPOINT INTERNATIONAL, INC., a Delaware corporation ("NorthPoint
International") (together with Northpoint Communications of Virginia, Inc., the
"Subsidiary Guarantors"), each as a debtor and debtor in possession under
chapter 11 of title 11, United States Code (the "Bankruptcy Code") and
NORTHPOINT CANADA INC., a corporation organized under the laws of the Province
of New Brunswick, ("NorthPoint Canada"), the banks, financial institutions and
other institutional lenders listed on the signature pages hereof as the Initial
Lenders (the "Initial Lenders"), and Canadian Imperial Bank of Commerce, as
administrative agent (together with any successor administrative agent appointed
pursuant to Article VIII, the "Administrative Agent") for the Lenders (as
hereinafter defined).
RECITALS:
WHEREAS, the terms used herein, including in the preamble and recitals
hereto, not otherwise defined herein or otherwise amended hereby shall have the
meanings ascribed thereto in the Credit Agreement;
WHEREAS, Borrower has requested, and Required Lenders have agreed, in
each case on the terms and conditions set forth herein, that the Credit
Agreement be amended as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the Borrower, each Guarantor,
Required Lenders and the Administrative Agent hereby agree as follows:
SECTION 1. Amendments. Subject to the satisfaction of the conditions
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precedent set forth in Section 2 hereof, the Credit Agreement is hereby amended,
effective as of the date hereof, as follows:
(a) Section 5.02(j) of the Credit Agreement is hereby amended by
adding at the end thereof the following new proviso:
"provided that the Borrower may prepay up to one week of charges and
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pay deposits to telecommunications companies in respect of the services provided
or to be provided
2
by such telecommunications companies to the Borrower or any other Loan Party so
long as the aggregate amount of such deposits does not exceed $5 million, such
prepayments and deposits do not cause the Borrower to fail to comply with the
Budget (including Permitted Budget Variances) and such prepayments and deposits
have been approved by the Bankruptcy Court to the extent such approval is
required."
(b) Section 6.01(f) of the Credit Agreement is hereby amended by
deleting the language ";or" at the end thereof and substituting therefor the
following new subsection (C):
" or (C) a conditional order granting relief from the automatic stay
so long as no party has exercised its rights of taking any action adverse to any
Loan Party (including, without limitation, terminating service) pursuant to such
conditional order;"
SECTION 2. Conditions of Effectiveness. (a) This Amendment shall
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become effective as of the date first above written when, and only when, the
following conditions shall have been satisfied:
(i) the Administrative Agent shall have received counterparts of this
Amendment executed by the Borrower, the Guarantors and the Required Lenders
or, as to any of the Required Lenders, advice satisfactory to the
Administrative Agent that such Lender has executed this Amendment; and
(ii) the Borrower shall have paid all costs, expenses and fees payable
pursuant to Section 4 below.
(b) In addition to the requirements set forth in subsection (a)
above, this Amendment is subject to the provisions of Section 9.01 of the Credit
Agreement.
SECTION 3. Reference to and Effect on the Loan Documents. (a) On
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and after the effectiveness of this Amendment, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the Notes and each of
the other Loan Documents to "the Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement as amended by this Amendment.
(b) The Credit Agreement, the Notes and each of the other Loan
Documents, as specifically amended by this Amendment, are and shall continue to
be in full force and effect and are hereby in all respects ratified and
confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or the Administrative Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
SECTION 4. Costs, Expenses; Taxes; Fees, Etc. The Borrower agrees to
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pay on demand all costs and expenses of the Administrative Agent in connection
with the preparation, execution and delivery of this Amendment (including,
without limitation, the reasonable fees and
3
expenses of counsel for the Administrative Agent) in accordance with the terms
of Section 9.04 of the Credit Agreement.
SECTION 5. Affirmation of Guaranties. Each of the Guarantors hereby
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consents to the execution and delivery of this Amendment and notwithstanding the
effectiveness of this Amendment, reaffirms in all respects its obligations under
each of the Guaranties and Article VII of the Credit Agreement.
SECTION 6. Execution in Counterparts. This Amendment may be executed
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in any number of counterparts and by different parties hereto 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 agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 7. Governing Law. This Amendment shall be governed by, and
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construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
NORTHPOINT COMMUNICATIONS, INC., as Borrower
By_______________________________________
Title:
NORTHPOINT COMMUNICATIONS GROUP, INC., as Parent
Guarantor
By_______________________________________
Title:
NORTHPOINT COMMUNICATIONS OF
VIRGINIA, INC., as a Subsidiary Guarantor
By_______________________________________
Title:
NORTHPOINT INTERNATIONAL, INC., as a
Subsidiary Guarantor
By_______________________________________
Title:
NORTHPOINT CANADA INC., as a Guarantor
By_______________________________________
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE,
as Administrative Agent
By__________________________________
Title:
Initial Lenders
CIBC INC., as a Lender
By__________________________________
Title:
CIT LENDING SERVICES
CORPORATION, an affiliate of THE
CIT GROUP, INC., as a Lender
By__________________________________
Title:
BANK OF MONTREAL, as a Lender
By__________________________________
Title:
BARCLAYS BANK PLC, as a Lender
By__________________________________
Title:
COAST BUSINESS CREDIT, A
DIVISION OF SOUTHERN PACIFIC
BANK, as a Lender
By__________________________________
Title:
FIRST UNION NATIONAL BANK, as a Lender
By__________________________________
Title:
FRANKLIN FLOATING RATE TRUST, as
a Lender
By__________________________________
Title:
CREDIT LYONNAIS NEW YORK
BRANCH, as a Lender
By__________________________________
Title:
XXXXXX FINANCIAL, INC., as a
Lender
By__________________________________
Title: