EXHIBIT 10.2
EIGHTH AMENDMENT, dated as of November 11, 2002 (this "Eighth Amendment"),
among FIBERNET OPERATIONS, INC., a Delaware corporation ("FiberNet"), DEVNET
L.L.C., a Delaware limited liability company ("Devnet" and, together with
FiberNet, the "Borrowers"), and the financial institutions party to the Credit
Agreement (as defined below) as lenders (collectively, the "Lenders"), to the
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of February 9, 2001 (the "Credit
Agreement"), among the Borrowers, the Lenders, DEUTSCHE BANK AG NEW YORK BRANCH
("DBAG"), as administrative agent for the Lenders (in such capacity, the
"Administrative Agent"), TD SECURITIES (USA) INC. ("TD"), as syndication agent
for the Lenders (in such capacity, the "Syndication Agent"), and WACHOVIA
INVESTORS, INC., as documentation agent for the Lenders (in such capacity, the
"Documentation Agent").
RECITALS
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WHEREAS, the Borrowers wish to make a certain amendment to the Credit
Agreement which is more particularly described herein.
AGREEMENT
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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 2.01 Definitions.
(a) The following defined terms are added to Section 1.1 of the Credit
Agreement in their proper alphabetical order:
"Deferred Interest Common Stock Closing" means the issuance by Parent to
the Lenders of 20,000,000 shares of Parent's common stock and warrants to
purchase 20,000,000 shares of Parent's common stock, and the satisfaction of all
conditions precedent to closing under the Deferred Interest Stock and Warrant
Purchase Agreement.
"Deferred Interest Common Stock Conversion" means the conversion by the
Lenders of interest in an aggregate amount of $2,000,000 to the equity capital
of the Parent pursuant to the Deferred Interest Stock and Warrant Purchase
Agreement.
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"Deferred Interest Stock and Warrant Purchase Agreement" means the Common
Stock and Warrant Purchase Agreement, dated November 11, 2002, among the Parent
and the Investors.
"SDS Common Stock Closing" means the issuance by Parent to SDS of
52,000,000 shares of Parent's common stock and the satisfaction of all
conditions precedent to closing under the SDS Stock Purchase Agreement.
"SDS Common Stock Conversion" means the conversion by SDS of debt in an
aggregate amount of $2,080,000 to the equity capital of the Parent pursuant to
the SDS Stock Purchase Agreement.
"SDS Stock Purchase Agreement" means the Common Stock Purchase Agreement,
dated November 11, 2002, among the Parent and SDS.
(b) The definition of "Change in Control" is amended by (i) replacing the
period (".") at the end of the definition with a semicolon (";") and (ii) adding
the following immediately thereafter:
"provided further, however, that, notwithstanding the foregoing, no
transaction effected by any of the Borrowers with the consent of the Lenders in
connection with (i) the Deferred Interest Common Stock Conversion or (ii) the
SDS Common Stock Conversion shall be deemed a Change in Control."
(c) The definition of "Restricted Payment" is amended by (i) replacing the
period (".") at the end of the definition with a semicolon (";") and (ii) adding
the following immediately thereafter:
"provided further, however, that, notwithstanding the foregoing, no
transaction effected by any of the Borrowers with the consent of the Lenders in
connection with (i) the Deferred Interest Common Stock Closing or (ii) the SDS
Common Stock Closing shall be deemed a Restricted Payment."
Section 2.02 Prepayments Due to Issuance of Debt or Equity.
(a) Section 2.5.B.(iii)(d) of the Credit Agreement is amended by (i)
deleting the word "and" which appears immediately before clause (vii), (ii)
adding a comma (",") immediately before clause (vii) and (iii) adding the
following clauses (viii and ix) immediately prior to the words "in each case to
prepay the Loans or permanently" in the twenty-third line thereof:
"(viii) such Net Proceeds received in connection with the Deferred Interest
Common Stock Conversion, and (ix) such Net Proceeds received in connection with
the SDS Common Stock Conversion"
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ARTICLE III.
MISCELLANEOUS
Section 3.01 Execution of this Eighth Amendment; Effectiveness.
This Eighth Amendment is executed and shall be construed as an amendment to
the Credit Agreement, and, as provided in the Credit Agreement, this Eighth
Amendment forms a part thereof. This Eighth Amendment shall be effective upon
the satisfaction of the following condition:
(a) The transactions contemplated by the Deferred Interest Stock and
Warrant Purchase Agreement shall have been consummated on the terms therein set
forth and upon satisfaction of the conditions therein set forth.
Section 3.02 Representations and Warranties.
The Borrowers hereby represent and warrant to the Administrative Agent and
the Lenders that (a) all consents, approvals and authorizations necessary for
the Borrowers' execution, delivery and performance of this Eighth Amendment have
been obtained or made and (b) this Eighth Amendment has been duly executed and
delivered by the Borrowers and constitutes a legal, valid and binding obligation
of each Borrower, enforceable against such Borrower in accordance with its
terms.
Section 3.03 Waiver.
This Eighth 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 Eighth 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 Eighth 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 Eighth 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 Eighth 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. In addition to the requirements
set forth above in Section 3.01, this Eighth Amendment shall become effective
when it shall have been executed by each of the Borrowers and each of the
Lenders, 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
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signature page of this Eighth Amendment by telecopy shall be as effective as
delivery of a manually executed counterpart of this Eighth Amendment.
Section 3.05 Severability.
Any provision of this Eighth 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 or 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 Eighth 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 3.07 Headings.
Article and Section headings used herein are for convenience of reference
only, are not part of this Eighth Amendment and shall not affect the
construction of, or be taken into consideration in interpreting, this Eighth
Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Eighth Amendment to
be duly executed by their respective authorized officers as of the day and year
first above written.
FIBERNET OPERATIONS, INC.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: President
DEVNET L.L.C.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Chairman
DEUTSCHE BANK AG NEW YORK
BRANCH
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Director
By: /s/ Xxxxxxxxx Xxxxxxx
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Name: Xxxxxxxxx Xxxxxxx
Title: Vice President
WACHOVIA INVESTORS, INC.
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: Authorized Officer
BANK ONE, NA
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
IBM CREDIT CORPORATION
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title: Director, Credit Operations
NORTEL NETWORKS INC.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Director, Customer Finance
TORONTO DOMINION (TEXAS), INC.
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Vice President
