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Exhibit 10.17.1
NET2000 COMMUNICATIONS GROUP, INC.
FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT
This FIRST AMENDMENT dated as of December 23, 1999 (this "FIRST
AMENDMENT") to the NOTE PURCHASE AGREEMENT dated as of July 30, 1999 (such
agreement as amended, supplemented or otherwise modified from time to time, the
"NOTE PURCHASE AGREEMENT") is entered into by and among NET2000 COMMUNICATIONS,
INC. (the "COMPANY"), a Delaware corporation, and NORTEL NETWORKS INC.
("PURCHASER"), a Delaware corporation. Capitalized terms used herein without
definition shall have the same meanings herein as set forth in the Note Purchase
Agreement.
RECITALS
WHEREAS, Company and Purchaser are parties to the Note Purchase
Agreement, pursuant to which Purchaser is entitled to purchase from Company, and
the Company is obligated to sell to Purchaser, up to $75,000,000 aggregate
principal amount at stated maturity of its Senior Discount Notes due 2009 (the
"NOTES") under the terms and conditions set forth therein;
WHEREAS, Purchaser, NET2000 Communications Group, Inc., a Delaware
corporation, certain lenders named therein ("LENDERS") and the administrative
agent named therein ("AGENT") are parties to that certain Amended and Restated
Credit Agreement dated as of July 30, 1999 (the "EXISTING CREDIT AGREEMENT"), as
amended by the First Amendment and Assignment Agreement of even date herewith
(the "FIRST CREDIT AGREEMENT AMENDMENT"; the Existing Credit Agreement, as
amended by the First Credit Agreement Amendment and as it may be further
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"); and
WHEREAS, in order to induce Agent and Lenders (as defined in the Credit
Agreement) to consummate the transactions contemplated by the First Credit
Agreement Amendment, Company and Purchaser have agreed to enter into this First
Amendment.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS
1.1 AMENDMENTS TO SECTION 1
A. Section 1.1 of the Note Purchase Agreement is hereby amended by
adding the following definitions in appropriate alphabetical order:
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"CREDIT AGREEMENT" has the meaning assigned to that term in the
recitals to the First Amendment.
"FIRST AMENDMENT" means that certain First Amendment to Note
Purchase Agreement, dated as of December 23, 1999, by and between the Company
and Purchaser.
"FIRST AMENDMENT EFFECTIVE DATE" has the meaning assigned to
that term in the First Amendment.
"MANDATORY PURCHASE DATE" has the meaning assigned to that term
in Section 2.3(c).
1.2 AMENDMENTS TO SECTION 2
A. Section 2.2(b) of the Agreement is hereby amended to read in its
entirety as follows:
"(b) The Applicable Rate shall initially be 13.5% per annum; provided,
however, that if the sum of the Treasury Rate on the Resale Date plus 8% is
greater than 13.5%, the Applicable Rate shall be reset on and as of the Resale
Date to equal such Treasury Rate plus 8%; provided that, notwithstanding the
foregoing, during the period from the Mandatory Purchase Date through the Final
Issue Date, the Applicable Rate shall be 9.75% per annum."
B. Section 2.3 of the Note Purchase Agreement is hereby amended by
adding the following additional Section 2.3(c):
"(c) Notwithstanding anything in this Agreement to the contrary, Company hereby
unconditionally agrees to sell and Purchaser hereby unconditionally, subject
solely to the satisfaction of the conditions to closing contained in Section 9.1
(which may be waived by the Purchaser), agrees to purchase on January 7, 2000
(the "MANDATORY PURCHASE DATE"), the entire aggregate principal amount of the
Notes for the price specified above, such closing to occur at 10:00 a.m. at the
offices of Xxxxx, Day, Xxxxxx & Xxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000. Company and Purchaser acknowledge and agree that the Agent and Lenders
(as defined in the Credit Agreement) have entered into the Credit Agreement as
amended through the First Amendment Effective Date in reliance upon the
provisions of this Section 2.3(c) and that Company and Purchaser are agreeing to
such provisions in order to induce Agent and Lenders to enter into the First
Credit Agreement Amendment."
SECTION 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this First Amendment shall become effective upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "FIRST AMENDMENT
EFFECTIVE DATE"):
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A. EXECUTION. Company and Purchaser shall have executed this First
Amendment.
B. CERTAIN DOCUMENTS. On or before the First Amendment Effective
Date, the Company shall deliver or cause to be delivered the following:
(i) resolutions of its Board of Directors approving and
authorizing the execution, delivery and performance of this First Amendment
certified as of the First Amendment Effective Date by its corporate secretary or
an assistant secretary as being in full force and effect without modification or
amendment; and
(ii) signature and incumbency certificates of its officers
executing the First Amendment.
C. OPINIONS OF COUNSEL. Company and Purchaser shall have received
an executed copy of one or more favorable written opinions substantially in the
form of Exhibits A and B attached hereto from Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP,
counsel to Company.
D. REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF AGREEMENTS. Each
of Company and Purchaser shall have delivered to Administrative Agent (and to
Purchaser in the case of the Officer's Certificate delivered by Company) an
officer's certificate, in form and substance satisfactory to Administrative
Agent, to the effect that (i) the representations and warranties contained in
the Note Purchase Agreement and in Sections 3 and 4 of this First Amendment with
respect to Company or Purchaser, as the case may be, are and will be true,
correct and complete in all material respects on and as of the First Amendment
Effective Date to the same extent as though made on and as of that date, except
to the extent such representations and warranties specifically relate to an
earlier date, in which case they were true, correct and complete in all material
respects on and as of such earlier date, and (ii) Company and Purchaser,
respectively, shall have performed in all material respects all agreements and
satisfied all conditions which this Amendment provides shall be performed or
satisfied by Company and Purchaser, respectively, on or before the First
Amendment Effective Date, except as otherwise disclosed to and agreed to in
writing by Administrative Agent. In addition, the Officers' Certificate to be
delivered by the Company shall be to the effect that (a) no action, suit or
proceeding shall be pending against or affecting or, to the knowledge of the
Company, threatened against, the Company or any of its Subsidiaries before any
Governmental Authority that, if adversely determined, would, individually or in
the aggregate, have a Material Adverse Effect and (b) neither the Company nor
any of its Subsidiaries has sustained since the date of the Balance Sheet any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor or court
or governmental action, order or decree, and there shall not have been any
Material Adverse Change.
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E. SUPPLEMENTAL INDENTURE. The Trustee and Company shall enter into
a First Supplemental Indenture substantially in the form of Exhibit A to this
First Amendment (the "FIRST SUPPLEMENTAL INDENTURE").
F. NECESSARY CONSENTS. Each of Company and Purchaser shall have
obtained all material consents necessary or advisable in connection with the
transactions contemplated by the this First Amendment.
G. OTHER DOCUMENTS. Each of Company and Purchaser shall have
received such other documents and information regarding the Company and
Purchaser as Agent may reasonably request.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF COMPANY
Company represents and warrants to Purchaser that the following
statements are true, correct and complete in all material respects:
A. CORPORATE POWER AND AUTHORITY. Company is duly incorporated and
is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with the power and authority (corporate and
other) to own, lease and operate its properties and conduct its business as it
is currently being conducted.
B. AUTHORIZATION OF FIRST AMENDMENT. Company has all requisite
corporate power and authority to execute, deliver and perform their obligations
under this First Amendment, the Purchase Agreement and the other Note Documents
and each other document related thereto to which it is, or will be, a party and
to consummate the transactions contemplated hereby and thereby, including
without limitation the corporate power and authority to issue, sell and deliver
the Notes. This First Amendment has been duly authorized, executed and delivered
by Company.
C. NO CONFLICTS. The execution and delivery by Company of this
First Amendment, and the performance by it of its obligations hereunder, do not
and will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, sale/leaseback agreement, loan agreement or other similar
agreement or instrument to which Company or any of its Subsidiaries is a party
or by which Company or any of its Subsidiaries is bound or to which any of the
property or assets of Company or any of its Subsidiaries is subject, nor will
such action result in any violation of the provisions of the Certificate of
Incorporation or Bylaws or other constituent documents of Company or any statute
or any order, rule or regulation of any court or Governmental Authority having
jurisdiction over Company or any of its Subsidiaries or any of their properties;
and no consent, approval, authorization, order, registration or qualification of
or with any such court or Governmental Authority is required for the execution
and delivery of this First Amendment or the consummation by Company of the
transactions contemplated hereby, except such as have been ob-
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tained or may be required in connection with the registration under the
Securities Act of the Notes in accordance with the Registration Rights
Agreement, the qualification of the Indenture under the TIA and such consents,
approvals, authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase and
resale of the Notes by Purchaser.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Company that the following
statements are true, correct and complete in all material respects:
A. CORPORATE POWER AND AUTHORITY. Purchaser is duly incorporated
and is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with the power and authority (corporate and
other) to own, lease and operate its properties and conduct its business as it
is currently being conducted.
B. AUTHORIZATION OF FIRST AMENDMENT. Purchaser has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this First Amendment, the Purchase Agreement and the other Note Documents
and each other document related thereto to which it is, or will be, a party and
to consummate the transactions contemplated hereby and thereby. This First
Amendment has been duly authorized, executed and delivered by Purchaser.
C. NO CONFLICTS. The execution and delivery by Purchaser of this
First Amendment, and the performance by it of its obligations hereunder, do not
and will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, sale/leaseback agreement, loan agreement or other similar
agreement or instrument to which Purchaser or any of its Subsidiaries is a party
or by which Purchaser or any of its Subsidiaries is bound or to which any of the
property or assets of Purchaser or any of its Subsidiaries is subject, nor will
such action result in any violation of the provisions of the Certificate of
Incorporation or Bylaws or other constituent documents of Purchaser or any
statute or any order, rule or regulation of any court or Governmental Authority
having jurisdiction over Purchaser or any of its Subsidiaries or any of their
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or Governmental Authority is required
for the execution and delivery of this First Amendment or the consummation by
Purchaser of the transactions contemplated hereby, except such as have been
obtained or may be required in connection with the registration under the
Securities Act of the Notes in accordance with the Registration Rights
Agreement, the qualification of the Indenture under the TIA and such consents,
approvals, authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase and
resale of the Notes by Purchaser.
SECTION 5. CONSENT
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Purchaser hereby consents to the execution and delivery of the
First Supplemental Indenture by the Trustee and Company.
SECTION 6. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE NOTE PURCHASE AGREEMENT, THE
INDENTURE AND THE NOTES.
(i) On and after the First Amendment Effective Date, each
reference in the Note Purchase Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the Note Purchase
Agreement, and each reference in the Indenture or the Notes to the "Note
Purchase Agreement", "thereunder", "thereof" or words of like import referring
to the Note Purchase Agreement shall mean and be a reference to the Note
Purchase Agreement as amended by this First Amendment;
(ii) Except as specifically amended by this First Amendment,
the Note Purchase Agreement, the Indenture and the Notes shall remain in full
force and effect and are hereby ratified and confirmed; and
(iii) The execution, delivery and performance of this First
Amendment shall not, except as expressly provided herein, constitute a waiver of
any provision of, or operate as a waiver of any right, power or remedy of any
party under the Note Purchase Agreement, the Indenture or the Notes.
B. HEADINGS. Section and Subsection headings in this First
Amendment are included herein for convenience of reference only and shall not
constitute a part of this First Amendment for any other purpose or be given any
substantive effect.
C. APPLICABLE LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO ITS CONFLICTS OF LAWS PRINCIPLES.
D. SUBMISSION TO JURISDICTION; WAIVERS. The Company hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any legal action
or proceeding relating to this First Amendment, the Notes, and the other Note
Documents to which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction of the
courts of the States of New York and Texas and the courts of the United States
of America for the Southern District of New York and the Northern District of
Texas, and appellate courts from any thereof;
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(ii) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to its
address set forth under its signature below or at such other address of which
the Purchaser shall have been notified; and
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to xxx in any other jurisdiction.
EACH OF THE COMPANY AND PURCHASER HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS FIRST AMENDMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
E. COUNTERPARTS. This First Amendment may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this First Amendment by
signing any such counterpart.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY: NET2000 COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: CFO
PURCHASER: NORTEL NETWORKS INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: VP
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