EXHIBIT 10.1
[EXECUTION COPY]
AMENDMENT NO. 1
TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") dated as of January 31, 2002, is made among Cogent
Communications, Inc., a Delaware corporation ("Borrower"), Cogent Internet,
Inc., a Delaware corporation ("Additional Borrower"), Cogent Communications
Group, Inc., a Delaware corporation ("Holdings"), and Cisco Systems Capital
Corporation, a Nevada corporation ("Lender" or "Agent").
WHEREAS, the parties hereto entered into a Second Amended and Restated
Credit Agreement dated as of October 24, 2001 (the "Credit Agreement") among
Borrower, Additional Borrower, the several financial institutions from time to
time party thereto ("Lenders") and Agent;
WHEREAS, Borrower intends to consummate a merger with Allied Riser
Communications Corporation ("Allied Riser") pursuant to that certain Agreement
and Plan of Merger dated August 28, 2001 (and as amended as of October 13, 2001)
(the "AR Merger Agreement"), among Allied Riser, Borrower and Xxxxxxxx Xxxxxx
Merger Sub, Inc.; and
WHEREAS, in connection with the consummation of the transactions
contemplated by the AR Merger Agreement, Borrower, Additional Borrower, Holdings
and Agent desire, in accordance with Section 8.1 of the Credit Agreement, to
amend the Credit Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
herein contained, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto agree as follows
SECTION 1 DEFINITIONS; INTERPRETATION.
(a) TERMS DEFINED IN CREDIT AGREEMENT. All capitalized terms used in
this Amendment (including in the recitals hereof) and not otherwise defined
herein shall have the meanings assigned to them in the Credit Agreement.
(b) INTERPRETATION. The rules of interpretation set forth in Section
1.2 of the Credit Agreement shall be applicable to this Amendment and are
incorporated herein by this reference.
SECTION 2 AMENDMENTS TO THE CREDIT AGREEMENT.
(a) AMENDMENTS. The Credit Agreement and the Schedule shall be amended
as follows, effective as of the date of satisfaction of the conditions set forth
in Section 3 (the "Effective Date"):
1.
(i) Section 1.1 of the Credit Agreement is hereby amended as
follows:
(A) The following new definitions are added to this Section:
"FCC LICENSE" means any license granted by the FCC to
Holdings, Borrower or any Subsidiary of Holdings or
Borrower.
"LICENSE SUBSIDIARY" has the meaning set forth in Section
5.1(z).
(B) The definition of "Permitted Liens" is hereby amended by adding
the following to the end of the last sentence:
; and PROVIDED FURTHER that neither Holdings nor Borrower
shall, nor shall either permit any of its respective
Subsidiaries to, create any Lien on any FCC License or on
any capital stock of or other ownership interest in or
assets of any License Subsidiary.
(C) The definition of "Permitted Transactions" is hereby amended by
adding the following sentence to the end of such definition:
Notwithstanding anything to the contrary contained herein,
the transactions (collectively, the "Transactions")
described in the Plan of Merger, dated August 28, 2001 (the
"AR Merger Agreement"), among Allied Riser Communications
Corporation ("Allied Riser"), Borrower and Xxxxxxxx Xxxxxx
Merger Sub, Inc. shall be Permitted Transactions hereunder.
(D) The definition of "Subordinated Debt" is hereby deleted in its
entirety and replaced by the following:
"Subordinated Debt" means (i) the Indebtedness of Allied
Riser under the Indenture dated as of June 28, 2000, as
amended, by and between Allied Riser Communications
Corporation and Wilmington Trust Company, as trustee,
assumed by Holdings in connection with the AR Merger
Agreement, and (ii) unsecured Indebtedness of Holdings in an
amount not to exceed $200,000,000 complying with each of the
following requirements: (A) Holdings shall, in a certificate
provided on or immediately prior to the date of the receipt
of proceeds of any such unsecured Indebtedness, demonstrate
its pro forma compliance with the applicable financial
covenants set forth herein (after giving effect to the
incurrence of any such unsecured Indebtedness); (B) the
final maturity date of such unsecured Indebtedness shall be
after the first anniversary of the final maturity date of
the last Loans advanced to Borrower hereunder (the "Maturity
Date"); (C) the terms of such Indebtedness shall specify
that no principal
2.
repayments in respect thereof are required until the
Maturity Date; (D) any such unsecured Indebtedness shall
contain no covenants or provisions materially more
restrictive on Holdings and its Subsidiaries than those
contained herein; and (E) such unsecured Indebtedness shall
be subordinated to the payment of the Obligations on terms
that are usual and customary for unsecured Indebtedness
issued under similar circumstances and for similar amounts
in the high yield subordinated debt market.
(ii) Section 5.1(g) of the Credit Agreement is hereby amended by
adding the following to the end of the last sentence of such Section:
; provided, however, that any change in the nature of
Holding's, Borrower's and their respective Subsidiaries'
business resulting directly from the merger transaction
contemplated by the AR Merger Agreement, shall not be a
violation of this Section 5.1(g).
(iii) Section 5.1(h) of the Credit Agreement is hereby amended by
adding the following to the end of the last sentence of such Section:
Notwithstanding the foregoing, no License Subsidiary may be
merged into Holdings or Borrower, and no License Subsidiary
may merge with or into any other Subsidiary except another
License Subsidiary.
(iv) Section 5.1(i) of the Credit Agreement is hereby amended by
adding the following to the end of such Section:
Notwithstanding the foregoing, neither Holdings nor Borrower
nor any License Subsidiary shall enter into or consummate
any Transfer involving any FCC Licenses or License
Subsidiaries, except a Transfer of FCC Licenses to another
License Subsidiary. Furthermore, notwithstanding anything to
the contrary contained herein, sales of assets acquired
pursuant to the AR Merger Agreement shall not be a violation
of the covenants set forth in this Section 5.1(i).
(v) Section 5.1(k) of the Credit Agreement is hereby amended by
adding the following to the end of such Section:
Notwithstanding the foregoing, neither Holdings nor Borrower
shall permit any License Subsidiary to create, incur, assume
or otherwise become liable for or suffer to exist any
Indebtedness, other than Indebtedness in favor of Agent or
any Lender arising under the Loan Documents.
3.
(vi) Section 5.1(q) of the Credit Agreement is hereby deleted in its
entirety and replaced with the following:
(q) [Intentionally omitted.]
(vii) Section 5.1(r) of the Credit Agreement is hereby deleted in its
entirety and replaced with the following:
(r) FINANCIAL COVENANTS.
(i) LEVERAGE RATIO. On a consolidated basis, Holdings and
its Subsidiaries shall not, as of the last day of any fiscal
quarter, permit its ratio of Consolidated Funded Debt to
EBITDA (measured on a rolling four quarter basis for the
four fiscal quarters ended as of each quarterly period set
forth below) to be greater than the ratios indicated below:
QUARTERLY PERIOD ENDING REQUIRED RATIO
March 31, 2002 N/A
June 30, 2002 N/A
September 30, 2002 N/A
December 31, 2002 N/A
March 31, 2003 N/A
June 30, 2003 N/A
September 30, 2003 N/A
December 31, 2003 11.6:1
March 31, 2004 6.5:1
June 30, 2004 4.4:1
September 30, 2004 3.3:1
December 31, 2004 2.6:1
March 31, 2005 2.2:1
June 30, 2005 2.0:1
September 30, 2005 2.2:1
December 31, 2005 2.4:1
March 31, 2006 2.7:1
June 30, 2006 2.7:1
September 30, 2006 2.5:1
December 31, 2006 2.2:1
March 31, 2007 2.0:1
June 30, 2007 1.8:1
September 30, 2007 0.9:1
4.
QUARTERLY PERIOD ENDING REQUIRED RATIO
December 31, 2007 0.8:1
March 31, 2008 0.6:1
Thereafter 0.6:1
(ii) MINIMUM TOTAL REVENUES. On a consolidated basis,
Holdings and its Subsidiaries shall not fail to maintain
total monthly or total annualized quarterly revenues of
Holdings and its Subsidiaries, for each monthly or quarterly
period, as applicable, set forth below, of not less than the
correlative amount indicated (it being understood that with
respect to any quarterly period, annualized revenues shall
be equal to revenues for such quarterly period, multiplied
by four):
MONTHLY PERIOD ENDING REQUIRED AMOUNT
January 31, 2002 $ 755,000
February 28, 2002 $ 985,000
March 31, 2002 $ 1,215,000
April 30, 2002 $ 1,510,000
May 31, 2002 $ 1,855,000
QUARTERLY PERIOD ENDING REQUIRED ANNUALIZED AMOUNT
June 30, 2002 $ 26,700,000
September 30, 2002 $ 42,500,000
December 31, 2002 $ 66,100,000
March 31, 2003 $ 82,800,000
June 30, 2003 $ 115,200,000
September 30, 2003 $ 152,300,000
December 31, 2003 $ 196,900,000
March 31, 2004 $ 248,800,000
June 30, 2004 $ 304,800,000
September 30, 2004 $ 361,200,000
December 31, 2004 $ 420,000,000
March 31, 2005 $ 409,500,000
June 30, 2005 $ 461,700,000
September 30, 2005 $ 514,600,000
December 31, 2005 $ 570,000,000
March 31, 2006 $ 528,300,000
June 30, 2006 $ 565,400,000
September 30, 2006 $ 603,200,000
December 31, 2006 $ 641,600,000
March 31, 2007 $ 579,500,000
June 30, 2007 $ 613,100,000
5.
September 30, 2007 $ 647,200,000
December 31, 2007 $ 681,700,000
March 31, 2008 $ 609,900,000
Thereafter $ 609,900,000
(iii) MINIMUM EBITDA. On a consolidated basis, Holdings and
its Subsidiaries shall not fail to maintain EBITDA for each
period of four quarters ended as of the last day of each
quarterly period set forth below of not less than the
correlative amount indicated (bracketed amounts (< >) are
negative):
QUARTERLY PERIOD ENDING REQUIRED AMOUNT
March 31, 2002 N/A
June 30, 2002 $ (45,200,000)
September 30, 2002 $ (38,800,000)
December 31, 2002 $ (35,800,000)
March 31, 2003 $ (23,000,000)
June 30, 2003 $ (7,000,000)
September 30, 2003 $ 11,200,000
December 31, 2003 $ 36,700,000
March 31, 2004 $ 69,200,000
June 30, 2004 $ 107,700,000
September 30, 2004 $ 149,400,000
December 31, 2004 $ 196,000,000
March 31, 2005 $ 228,700,000
June 30, 2005 $ 238,500,000
September 30, 2005 $ 216,600,000
December 31, 2005 $ 195,300,000
March 31, 2006 $ 161,900,000
June 30, 2006 $ 152,700,000
September 30, 2006 $ 156,200,000
December 31, 2006 $ 161,300,000
March 31, 2007 $ 162,400,000
June 30, 2007 $ 166,400,000
September 30, 2007 $ 166,800,000
December 31, 2007 $ 154,600,000
March 31, 2008 $ 155,000,000
Thereafter $ 155,000,000
6.
(iv) INTEREST COVERAGE RATIO. On a consolidated basis,
Holdings and its Subsidiaries shall not permit the ratio of
EBITDA to Interest Expense (measured on a rolling four
quarter basis for the four fiscal quarters ended on the last
day of each quarterly period set forth below) for each
quarterly period set forth below to be less than the ratio
set forth below (determined as of the end of the quarterly
period set forth below):
QUARTERLY PERIOD ENDING REQUIRED RATIO
March 31, 2002 N/A
June 30, 2002 N/A
September 30, 2002 N/A
December 31, 2002 N/A
March 31, 2003 N/A
June 30, 2003 N/A
September 30, 2003 0.3:1
December 31, 2003 0.9:1
March 31, 2004 1.6:1
June 30, 2004 2.4:1
September 30, 2004 3.3:1
December 31, 2004 4.2:1
March 31, 2005 3.9:1
June 30, 2005 3.2:1
September 30, 2005 2.5:1
December 31, 2005 1.9:1
March 31, 2006 1.4:1
June 30, 2006 1.2:1
September 30, 2006 1.1:1
December 31, 2006 1.0:1
March 31, 2007 1.0:1
June 30, 2007 1.0:1
September 30, 2007 1.0:1
December 31, 2007 1.1:1
March 31, 2008 1.2:1
Thereafter 1.2:1
(v) MAXIMUM FUNDED DEBT TO CAPITALIZATION. On a consolidated
basis, Holdings and its Subsidiaries shall not permit the
ratio of Consolidated Funded Debt to Capitalization to
exceed
7.
the percentage amount set forth below (determined as of the
end of the quarterly period set forth below):
QUARTERLY PERIOD ENDING PERCENTAGE
March 30, 2002 N/A
June 30, 2002 71%
September 30, 2002 71%
December 31, 2002 71%
March 31, 2003 71%
June 30, 2003 71%
September 30, 2003 71%
December 31, 2003 71%
March 31, 2004 71%
June 30, 2004 72%
September 30, 2004 73%
December 31, 2004 73%
March 31, 2005 73%
June 30, 2005 73%
September 30, 2005 73%
December 31, 2005 72%
March 31, 2006 71%
June 30, 2006 70%
September 30, 2006 68%
December 31, 2006 68%
March 31, 2007 65%
June 30, 2007 62%
September 30, 2007 50%
December 31, 2007 50%
March 31, 2008 50%
Thereafter 50%
(vi) MINIMUM CUSTOMERS. The number of revenue generating
customers of Holdings and its Subsidiaries (treating each
office location of a Person purchasing services from
Holdings or any Subsidiary to be a separate customer to the
extent such office locations are in separate buildings) as
of the end of the monthly or quarterly period set forth
below shall not be less than the number listed opposite such
period:
8.
MONTHLY PERIOD NUMBER
January 31, 2002 231
February 28, 2002 300
March 31, 2002 392
April 30, 2002 498
May 31, 2002 614
QUARTERLY PERIOD NUMBER
June 30, 2002 745
September 30, 2002 1,311
December 31, 2002 1,970
March 31, 2003 2,809
June 30, 2003 3,674
September 30, 2003 4,615
December 31, 2003 5,682
March 31, 2004 7,054
June 30, 2004 8,322
September 30, 2004 9,578
December 31, 2004 10,806
March 31, 2005 11,977
June 30, 2005 13,058
September 30, 2005 14,113
December 31, 2005 15,174
March 31, 2006 16,245
June 30, 2006 17,326
September 30, 2006 18,418
December 31, 2006 19,515
March 31, 2007 20,635
June 30, 2007 21,757
September 30, 2007 22,889
December 31, 2007 24,022
March 31, 2008 25,168
Thereafter 25,168
(vii) MINIMUM CASH RESERVES. On a consolidated basis,
Holdings and its Subsidiaries shall maintain as of the last
day of each quarterly period Minimum Cash Reserves not less
than the amount listed opposite such date below:
DATE NUMBER
March 31, 2002 N/A
9.
DATE NUMBER
June 30, 2002 $ 53,900,000
September 30, 2002 $ 61,100,000
December 31, 2002 $ 45,300,000
March 31, 2003 $ 35,400,000
June 30, 2003 $ 25,300,000
September 30, 2003 $ 24,600,000
December 31, 2003 $ 27,100,000
March 31, 2004 $ 39,800,000
June 30, 2004 $ 64,100,000
September 30, 2004 $ 112,100,000
December 31, 2004 $ 146,200,000
March 31, 2005 $ 164,700,000
June 30, 2005 $ 174,400,000
September 30, 2005 $ 193,200,000
December 31, 2005 $ 218,400,000
March 31, 2006 $ 229,500,000
June 30, 2006 $ 237,300,000
September 30, 2006 $ 248,300,000
December 31, 2006 $ 265,700,000
March 31, 2007 $ 284,500,000
June 30, 2007 $ 187,200,000
September 30, 2007 $ 201,900,000
December 31, 2007 $ 220,200,000
Thereafter $ 252,700,000
(viii) MINIMUM NODES ON NET. The number of nodes connected
to the network maintained by Holdings and its Subsidiaries
as of any date listed below shall not be less than the
number listed opposite such monthly or quarterly period set
forth below:
MONTHLY PERIOD NUMBER
January 31, 2002 162
February 28, 2002 185
March 31, 2002 207
April 30, 2002 230
May 31, 2002 252
QUARTERLY PERIOD NUMBER
June 30, 2002 275
10.
September 30, 2002 316
December 31, 2002 388
March 31, 2003 472
June 30, 2003 556
September 30, 2003 640
December 31, 2003 724
March 31, 2004 820
June 30, 2004 916
September 30, 2004 1,012
December 31, 2004 1,108
March 31, 2005 1,204
June 30, 2005 1,300
September 30, 2005 1,396
December 31, 2005 1,492
March 31, 2006 1,588
June 30, 2006 1,684
September 30, 2006 1,780
December 31, 2006 1,876
March 31, 2007 1,972
June 30, 2007 2,068
September 30, 2007 2,164
December 31, 2007 2,260
March 31, 2008 2,356
Thereafter 2,356
(ix) MAXIMUM CAPITAL EXPENDITURES. On a consolidated basis,
Holdings and its Subsidiaries shall not make any
expenditures for fixed or capital assets on an annual basis
in excess of the amount listed below (determined as of the
end of the annual period set forth below):
DATE ANNUAL AMOUNT
December 31, 2002 $ 66,600,000
December 31, 2003 $ 94,700,000
December 31, 2004 $ 108,300,000
December 31, 2005 $ 115,200,000
December 31, 2006 $ 83,400,000
December 31, 2007 $ 77,600,000
11.
DATE ANNUAL AMOUNT
Thereafter $ 77,600,000
As used in this subsection (r), the following terms shall
have the following meanings: "Capitalization" means, on any
date, the sum of (i) Consolidated Funded Debt, and (ii) the
sum of common and preferred equity, including without
duplication capital stock plus paid in capital of Holdings
and its Subsidiaries on such date, on a consolidated basis
and as determined in accordance with, GAAP; "Consolidated
Funded Debt" means, as of any date of determination, all
Indebtedness of Holdings and its Subsidiaries on such date,
on a consolidated basis and as determined in accordance with
GAAP; "EBITDA" means, for any period with respect to
Holdings and its Subsidiaries, net income (excluding
extraordinary items), plus (except to the extent
attributable to extraordinary items) the amount of any
interest, taxes, depreciation, amortization and other
non-cash charges deducted in determining such net income,
all of the foregoing as determined on a consolidated basis
for Holdings and its Subsidiaries, determined in conformity
with GAAP; "Interest Expense" means, for any period with
respect to Holdings and its Subsidiaries, the amount of
interest expense, both expensed and capitalized (including
the portion of any payments in respect of any capital leases
allocable to interest expense), on a consolidated basis, as
determined in accordance with GAAP, paid or payable during
such period in respect of any Indebtedness of Holdings and
its Subsidiaries; and "Minimum Cash Reserves" means
unrestricted cash and cash equivalents of Borrower and its
wholly-owned Subsidiaries. Notwithstanding anything in this
Section 5.1(r) to the contrary, any Indebtedness or any
Interest Expense thereon accruing or becoming due during the
Permitted Period resulting from Permitted Purchases shall
not be included by Holdings in determining compliance with
the financial covenants set forth in this Section 5.1(r).
Notwithstanding any provision to the contrary contained
herein, if Holdings and its Subsidiaries fail to comply with
any of the financial covenants set forth in this Section
5.1(r) prior to the period ending June 30, 2002, such
non-compliance shall not constitute an Event of Default
hereunder, but neither Agent nor any other Lender shall have
any obligation to make any Loans to Borrower (other than
Tranche X Loans (as defined in the Schedule), which shall
continue to be available to Borrower), until Holdings and
its Subsidiaries shall have complied with all of the monthly
financial covenants set forth in this Section 5.1(r) for a
subsequent month during the period prior to and including
the period ending June 30, 2002. On and after June 30, 2002,
any
12.
non-compliance with any of the financial covenants shall
constitute an Event of Default hereunder.
(viii) The following is added as a new Section 5.1(z) to the Credit
Agreement:
(z) FCC LICENSES AND LICENSE SUBSIDIARIES. Neither Holdings
nor Borrower shall permit any FCC License to be owned or
acquired by any Person other than a Subsidiary that (i) is
wholly owned directly or indirectly by Borrower, (ii) does
not engage in any business or activity other than the
ownership of FCC Licenses and activities directly incidental
thereto, (iii) does not own or acquire any assets other than
FCC Licenses, and (iv) does not have or incur any
Indebtedness or other liabilities other than liabilities
imposed by law, including tax liabilities, other liabilities
directly incidental to its existence and permitted business
and activities, and any liabilities to Agent and Lenders
arising pursuant to the Loan Documents (any Subsidiary
satisfying the foregoing requirements, a "License
Subsidiary").
(ix) The following is added as a new Section 6.3 to the Credit
Agreement:
6.3 CERTAIN AGREEMENTS REGARDING THE COLLATERAL. Any
provision contained herein or in any Collateral Document to
the contrary notwithstanding, no action shall be taken
hereunder or under any of the Collateral Documents by Agent
or Lenders with respect to any Collateral in the form of FCC
Licenses or the pledged stock of any License Subsidiary
unless and until all applicable requirements of the FCC, if
any, under the Communications Act of 1934, applicable state
laws and the respective rules and regulations thereunder and
thereof, as well as any other laws, rules and regulations of
any other Governmental Authority applicable to or having
jurisdiction over Holdings, Borrower or the relevant
Subsidiary, have in the reasonable judgment of Agent been
fully satisfied to the extent necessary to take such action
and there have been obtained such consents, approvals and
authorizations, as may be required to be obtained from the
FCC, applicable state and local regulatory authorities and
municipalities and any other Governmental Authority under
the terms of any franchise, license or similar operating
right held by Holdings, Borrower or the relevant Subsidiary
in order to take such action. It is the intention of the
parties hereto that the pledge in favor of Agent (on behalf
of Lenders) of the stock of any License Subsidiary, and the
creation of a Lien (to the extent permitted by law) in favor
of Agent (on behalf of Lenders) in FCC Licenses, and all
rights and remedies by Agent and Lenders with respect to
such pledged stock and FCC Licenses, shall in all relevant
aspects be subject to and governed by said statutes, rules
13.
and regulations and that nothing in this Agreement shall be
construed to diminish the control exercised by Holdings,
Borrower or the relevant Subsidiary, except in accordance
with the provisions of such statutory requirements and rules
and regulations. By its acceptance of this Agreement, Agent
and each Lender agrees that it will not take any action
pursuant to this Agreement or any other Collateral Document
which constitutes or results in any assignment of a license
or franchise or any change of control over the
communications properties owned and operated by Holdings,
Borrower or any Subsidiary, if such assignment of license or
franchise or change of control would, under then existing
law or under any franchise, require the prior approval of a
Governmental Authority, without first obtaining such
approval. Upon the exercise by Agent or any Lender of any
power, right, privilege or remedy pursuant to this Agreement
or any Collateral Document which requires any consent,
approval, recording, qualification or authorization of any
Governmental Authority, Holdings or Borrower shall, or shall
cause the relevant Subsidiary to, execute and deliver all
applications, certificates, instruments and other documents
and papers that Agent may reasonably require in order for
such governmental consent, approval, recording,
qualification or authorization to be obtained. Holdings and
Borrower each agrees to use its best efforts to cause such
governmental consents, approvals, recordings, qualifications
and authorizations to be forthcoming.
(x) Section 2(c)(ii) of the Schedule to the Credit Agreement is
hereby deleted in its entirety and replaced by the following:
(ii) The Tranche B Loans and the Tranche X Loans shall be
subject to mandatory prepayment on or before the later of
(A) the third Banking Day after any date Holdings receives
the net proceeds from the sale of any of its equity
securities or debt instruments or securities (the "Holdings
Prepayment Date") (other than issuances of equity securities
to officers, directors, employees or consultants in the
ordinary course of business); PROVIDED, that Holdings shall
not be required to make any such mandatory prepayment if it
contributes such proceeds to Borrower as common equity prior
to the Holdings Prepayment Date and, in such case, any
mandatory prepayment required by this subsection 2(c)(ii)
shall be made according to the provisions of the immediately
succeeding clause (B) and (B) the next Banking Day after
Borrower receives from Holdings the net proceeds from the
sale of any of Holdings' equity securities or debt
instruments or securities (other than issuances of equity
securities to officers, directors, employees or consultants
in the ordinary course of business), in each case, whether
in one transaction or a series of
14.
transactions and in the amount of such proceeds; PROVIDED,
however, that Holdings or Borrower may retain (A) the first
$300,000,000 of proceeds of equity offerings of Holdings or
Borrower measured from the date of the Borrower's
incorporation and (B) up to $200,000,000 of proceeds of
Subordinated Debt offerings of Holdings (excluding proceeds
of Subordinated Debt issued or assumed by Holdings or the
Borrower in connection with the transactions contemplated by
the AR Merger Agreement, which Borrower shall be permitted
to retain in its entirety) without being required to make
such prepayment; PROVIDED that any retained proceeds
retained by Holdings shall be contributed by Holdings to
Borrower as common equity pursuant to the terms of this
Agreement and the Guaranty executed by Holdings in
connection herewith.
(b) REFERENCES WITHIN CREDIT AGREEMENT. Each reference in the
Credit Agreement to "this Agreement" and the words "hereof," "herein,"
"hereunder," or words of like import, shall mean and be a reference to the
Credit Agreement as amended by this Amendment.
SECTION 3 CONDITIONS OF EFFECTIVENESS. The effectiveness of Section 2
of this Amendment shall be subject to the satisfaction of each of the following
conditions precedent:
(a) FEES AND EXPENSES. Borrower shall have paid all invoiced costs and
expenses then due in accordance with Section 5(c) below.
(b) LOAN DOCUMENTS. Agent shall have received the following documents,
in form and substance satisfactory to it:
(i) the Guaranty by Allied Riser in favor of Agent (on behalf of
each Lender) in substantially the form of EXHIBIT A attached hereto;
(ii) the Security Agreement between Allied Riser and Agent (on
behalf of each Lender) in substantially the form of EXHIBIT B attached hereto
(the "AR Security Agreement");
(iii) the Copyright Security Agreement between Allied Riser and Agent
(on behalf of each Lender) in substantially the form of EXHIBIT C attached
hereto;
(iv) the Patent and Trademark Security Agreement between Allied
Riser and Agent (on behalf of each Lender) in substantially the form of EXHIBIT
D attached hereto;
(v) the Stock Pledge Agreement between Allied Riser and Agent (on
behalf of each Lender) in substantially the form of EXHIBIT E attached hereto;
15.
(vi) the Guaranty by each of the Subsidiaries of Allied Riser
identified on ANNEX A attached hereto (each an "AR Subsidiary" and,
collectively, the "AR Subsidiaries") in favor of Agent (on behalf of each
Lender) in substantially the form of EXHIBIT F attached hereto;
(vii) the Security Agreement among each AR Subsidiary and Agent (on
behalf of each Lender) in substantially the form of EXHIBIT G attached hereto
(the "AR Subsidiary Security Agreement");
(viii) within thirty (30) days after the Effective Date, the Guaranty
by Allied Riser Communications Corporation of Canada, Inc. ("AR Canada") in
favor of Agent (on behalf of each Lender), in form and substance satisfactory to
Agent, in accordance with Canadian law;
(ix) Within thirty (30) days after the Effective Date, the Personal
Property Security Agreement between AR Canada and Agent (on behalf of each
Lender), in form and substance satisfactory to Agent, in accordance with
Canadian law (the "AR Canada PPSA");
(x) the Amendment to Amended and Restated Stock Pledge Agreement
between Borrower and Agent (on behalf of each Lender) in substantially the form
of EXHIBIT H attached hereto (the "Amended Borrower Stock Pledge"); and
(xi) the consent of each Guarantor, in substantially the form of
EXHIBIT I (the "Guarantor Consent"), to the amendments contemplated by this
Amendment.
(c) DOCUMENTS AND ACTION RELATING TO COLLATERAL. On or before the
Effective Date (except as expressly provided below), Agent shall have received
the following, in form and substance satisfactory to it:
(i) UCC Financing Statements for Allied Riser and each AR
Subsidiary as required under the AR Security Agreement, the AR Subsidiary
Security Agreement and the other Collateral Documents;
(ii) Original stock certificates of Allied Riser pledged to Agent
(on behalf of Lenders) pursuant to the Amended Borrower Stock Pledge (together
with applicable Stock Power);
(iii) Within thirty (30) days after the Effective Date, Collateral
Access Agreements as required under the AR Security Agreement, the AR Subsidiary
Security Agreement and the other Collateral Documents;
(iv) Within thirty (30) days after the Effective Date, Account
Control Agreements as required under the AR Security Agreement, the AR
Subsidiary Security Agreement and the other Collateral Documents;
(v) Representations and Warranties Certificate with all requested
information completed by Borrower;
(vi) Within thirty (30) days after the Effective Date, such other
searches, certificates, filings, and other documents and instruments, in form
reasonably satisfactory to
16.
Agent, as Agent may reasonably require to effectuate the purposes of the AR
Canada PPSA and the other Loan Documents; and
(vii) Such other financing statements, searches, certificates,
filings, and other documents and instruments, in form reasonably satisfactory to
Agent, as Agent may reasonably require to effectuate the purposes of the Loan
Documents.
(d) ADDITIONAL CLOSING DOCUMENTS AND ACTIONS. On or before the
Effective Date (except as expressly provided below), Agent shall have received
the following, in form and substance satisfactory to it:
(i) within ten (10) days after the Effective Date, the certificate
of merger with respect to the Allied Riser merger transaction filed with the
Secretary of State of Delaware;
(ii) a certificate from Borrower and Holdings confirming the
capitalization of Holdings and Borrower and the total per share consideration
paid by Holdings to Allied Riser in connection with the consummation of the
Allied Riser merger transaction;
(iii) evidence that all (A) authorizations or approvals of any
Governmental Authority, and (B) approvals or consents of any other Person,
required in connection with the Allied Riser merger transaction and the
execution, delivery and performance of this Amendment shall have been obtained;
(iv) a certificate of a senior officer of Borrower, stating that (A)
the representations and warranties contained in Section 4 and in the amendments
to the other Loan Documents are true and correct in all material respects on and
as of the date of such certificate as though made on and as of the Effective
Date and (B) on and as of the Effective Date, after and giving effect to the
amendment of the Credit Agreement contemplated hereby, no Default shall have
occurred and be continuing;
(v) a certificate of a senior officer of Holdings, stating that the
representations and warranties contained in the Stock Pledge Agreement, the
Holdings Guaranty, and the other Guarantor Documents are true and correct in all
material respects on and as of the Effective Date as though made on and as of
such date;
(vi) a certificate of a senior officer of Allied Riser, stating that
the representations and warranties contained in the Allied Riser Guaranty and in
the other Guarantor Documents are true and correct in all material respects on
and as of the Effective Date as though made on and as of such date; and
(vii) such additional financial information with respect to Allied
Riser, Borrower or any Guarantor (e.g. financial statements, forecasts,
pro-formas, budgets, etc.), as Agent may reasonably request.
(e) CORPORATE DOCUMENTS. Agent shall have received the following, in
form and substance satisfactory to it:
17.
(i) a certificate of the Secretary or Assistant Secretary of
Borrower, dated the Effective Date, certifying (A) copies of the resolutions of
the Board of Directors of Borrower authorizing the execution, delivery and
performance of this Amendment and the amendments to the other Loan Documents and
(B) the incumbency, authority and signatures of each officer of Borrower
authorized to execute and deliver this Amendment and the amendments to the other
Loan Documents;
(ii) a certificate of the Secretary or Assistant Secretary of
Holdings, dated the Effective Date, certifying (A) copies of the resolutions of
the Board of Directors of the Holdings authorizing the execution, delivery and
performance of the Stock Pledge Agreement, the Guarantor Consent and related
documents, and (B) copies of the amended and restated certificate of
incorporation and amended and restated bylaws of Holdings; and
(iii) a certificate of the Secretary or Assistant Secretary of Allied
Riser and each of the AR Subsidiaries, dated the Effective Date, certifying (A)
copies of the resolutions of the Board of Directors of Allied Riser and each AR
Subsidiary authorizing the execution, delivery and performance of this Amendment
and each of the other documents described herein or related thereto to which it
is a party, (B) the incumbency, authority and signatures of each officer of
Allied Riser and each AR Subsidiary authorized to execute and deliver such
documents, and (C) copies of the certificate of incorporation and bylaws of
Allied Riser and each AR Subsidiary.
(f) LEGAL OPINIONS. Agent shall have received (i) the opinion of
Friedman, Kaplan, Xxxxxx & Xxxxxxx, LLP, counsel to Borrower, Additional
Borrower, Allied Riser and each Guarantor, dated the Effective Date, in
substantially the form of EXHIBIT J; and (ii) if requested by Agent, an opinion
of special FCC counsel to Borrower, Holdings and Allied Riser, within thirty
(30) days after the Effective Date.
(g) MATERIAL ADVERSE CHANGE. On and as of the Effective Date, there
shall have occurred no Material Adverse Change since the date of this Amendment.
(h) REPRESENTATIONS AND WARRANTIES; NO DEFAULT. On the Effective Date,
after giving effect to the amendment of the Credit Agreement contemplated
hereby:
(i) except as otherwise disclosed in writing to Agent and Lenders
under that certain disclosure schedule delivered to Lender prior to the
Effective Date, the representations and warranties contained in Section 4 and in
the other Loan Documents shall be true and correct on and as of the Effective
Date as though made on and as of such date; and
(ii) no Default shall have occurred and be continuing.
(i) ADDITIONAL DOCUMENTS. Agent shall have received, in form and
substance satisfactory to it, such additional approvals, opinions, documents and
other information as Lender may reasonably request.
SECTION 4 REPRESENTATIONS AND WARRANTIES. To induce Agent to enter
into this Amendment, Borrower hereby confirms and restates, as of the date
hereof, the representations and warranties made by it in Section 4.1 of the
Credit Agreement and in the
18.
other Loan Documents (except as otherwise disclosed in writing to Agent and
Lenders under that certain disclosure schedule delivered to Lender prior to the
Effective Date). For the purposes of this Section 4, (i) each reference in
Section 4.1 of the Credit Agreement to "this Agreement," and the words "hereof,"
"herein," "hereunder," or words of like import in such Section, shall mean and
be a reference to the Credit Agreement as amended by this Amendment, and each
reference in such Section to "the Loan Documents" shall mean and be a reference
to the Loan Documents as amended as contemplated hereby, and (ii) , clause (i)
shall take into account any amendments to any disclosures made in writing by
Borrower and any Guarantor to Agent and each Lender after the Closing Date and
approved by Agent (on behalf of each Lender).
SECTION 5 MISCELLANEOUS.
(a) CREDIT AGREEMENT OTHERWISE NOT AFFECTED. Except as expressly
amended pursuant hereto, the Credit Agreement shall remain unchanged and in full
force and effect and is hereby ratified and confirmed in all respects. Agent's
execution and delivery of, or acceptance of, this Amendment and any other
documents and instruments in connection herewith (collectively, the "Amendment
Documents") shall not be deemed to create a course of dealing or otherwise
create any express or implied duty by it to provide any other or further
amendments, consents or waivers in the future.
(b) NO RELIANCE. Borrower hereby acknowledges and confirms to Agent
that Borrower is executing this Amendment and the other Amendment Documents on
the basis of its own investigation and for its own reasons without reliance upon
any agreement, representation, understanding or communication by or on behalf of
any other Person.
(c) COSTS AND EXPENSES. Borrower agrees to pay to Agent on demand the
reasonable out-of-pocket costs and expenses of Agent, and the reasonable fees
and disbursements of counsel to Lender, in connection with the negotiation,
preparation, execution and delivery of this Amendment and any other documents to
be delivered in connection herewith.
(d) BINDING EFFECT. This Amendment shall be binding upon, inure to the
benefit of and be enforceable by Borrower, Agent, Additional Borrower, Holdings
and their respective successors and assigns.
(e) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
(f) COMPLETE AGREEMENT; AMENDMENTS. This Amendment, together with the
other Amendment Documents and the other Loan Documents, contains the entire and
exclusive agreement of the parties hereto and thereto with reference to the
matters discussed herein and therein. This Amendment supersedes all prior
commitments, drafts, communications, discussions and understandings, oral or
written, with respect thereto. This Amendment may not be modified, amended or
otherwise altered except in accordance with the terms of Section 8.1 of the
Credit Agreement.
19.
(g) SEVERABILITY. Whenever possible, each provision of this Amendment
shall be interpreted in such manner as to be effective and valid under all
applicable laws and regulations. If, however, any provision of this Amendment
shall be prohibited by or invalid under any such law or regulation in any
jurisdiction, it shall, as to such jurisdiction, be deemed modified to conform
to the minimum requirements of such law or regulation, or, if for any reason it
is not deemed so modified, it shall be ineffective and invalid only to the
extent of such prohibition or invalidity without affecting the remaining
provisions of this Amendment, or the validity or effectiveness of such provision
in any other jurisdiction.
(h) COUNTERPARTS. This Amendment may be executed 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 but one and the same agreement.
(i) INTERPRETATION. This Amendment and the other Amendment Documents
are the result of negotiations between and have been reviewed by counsel to
Agent, Borrower and other parties, and are the product of all parties hereto.
Accordingly, this Amendment and the other Amendment Documents shall not be
construed against Agent or any Lender merely because of Agent's involvement in
the preparation thereof.
(j) LOAN DOCUMENTS. This Amendment and the other Amendment Documents
shall constitute Loan Documents.
(k) DESIGNATED SENIOR DEBT. Each of the parties hereto acknowledges
and agrees that the Indebtedness owing to Agent and Lenders under the Credit
Agreement and any other Loan Document constitutes "Designated Senior Debt" for
purposes of the Indenture between Allied Riser Communications Corporation and
Wilmington Trust Company dated June 28, 2000, as the same may be amended from
time to time by any amendment or supplemental indenture.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
20.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment, as of the date first above written.
Cogent Communications, Inc.
By
-------------------------------
Title:
Cogent Communications Group, Inc.
By
-------------------------------
Title:
Cogent Internet, Inc.
By
-------------------------------
Title:
Cisco Systems Capital Corporation
By
-------------------------------
Title:
21.
EXHIBIT A
to Amendment No. 1 to Second Amended and Restated Credit Agreement
ALLIED RISER GUARANTY
[TO BE PROVIDED]
A-1
EXHIBIT B
to Amendment No. 1 to Second Amended and Restated Credit Agreement
ALLIED RISER SECURITY AGREEMENT
[TO BE PROVIDED]
B-1
EXHIBIT C
to Amendment No. 1 to Second Amended and Restated Credit Agreement
ALLIED RISER COPYRIGHT SECURITY AGREEMENT
[TO BE PROVIDED]
C-1
EXHIBIT D
to Amendment No. 1 to Second Amended and Restated Credit Agreement
ALLIED RISER PATENT AND TRADEMARK SECURITY AGREEMENT
[TO BE PROVIDED]
D-1
EXHIBIT E
to Amendment No. 1 to Second Amended and Restated Credit Agreement
ALLIED RISER STOCK PLEDGE AGREEMENT
[TO BE PROVIDED]
E-1
EXHIBIT F
to Amendment No. 1 to Second Amended and Restated Credit Agreement
AR SUBSIDIARY GUARANTY
[TO BE PROVIDED]
F-1
EXHIBIT G
to Amendment No. 1 to Second Amended and Restated Credit Agreement
AR SUBSIDIARY SECURITY AGREEMENT
[TO BE PROVIDED]
G-1
EXHIBIT H
to Amendment No. 1 to Second Amended and Restated Credit Agreement
AMENDMENT TO AMENDED AND RESTATED BORROWER STOCK PLEDGE AGREEMENT
[TO BE PROVIDED]
H-1
EXHIBIT I
to Amendment No. 1 to Second Amended and Restated Credit Agreement
CONSENT AND AGREEMENT OF GUARANTORS
Each of the undersigned, in its capacity as guarantor, acknowledges
that its consent to the foregoing Amendment is not required, but the undersigned
nevertheless does hereby consent to the foregoing Amendment and to any documents
and agreements referred to therein and to all future modifications and
amendments thereto (subject to the terms of the Guaranty ("Guaranty"), executed
by each of the undersigned in favor of Cisco Systems Capital Corporation
("CSCC") (as such Continuing Guaranty may be amended from time to time)), and
any termination thereof, and to any and all other present and future documents
and agreements by or between Cogent Communications, Inc. and CSCC. Nothing
herein shall in any way limit any of the terms or provisions of such Guaranty of
the undersigned or any other document or agreement executed by the undersigned
in CSCC's favor (as the same may be amended from time to time), all of which are
hereby ratified and affirmed in all respects.
GUARANTORS:
Cogent Communications, Inc.
By
-------------------------------
Title:
Cogent Communications Group, Inc.
By
-------------------------------
Title:
Cogent Internet, Inc.
By
-------------------------------
Title:
I-1
EXHIBIT J
to Amendment No. 1 to Second Amended and Restated Credit Agreement
FORM OF OPINION LETTER
[TO BE PROVIDED]
J-1
ANNEX A
to Amendment No. 1 to Second Amended and Restated Credit Agreement
SUBSIDIARIES OF ALLIED RISER
SUBSIDIARY JURISDICTION OF CORPORATE ID NO.
INCORPORATION
Allied Riser Operations Corporation DE 2957686
ARC Construction, Inc. DE 3298728
ARC Long Distance, Inc. DE 3026797
ARC Worldwide, Inc. DE 3202763
Allied Riser of Xxxxxxx XX 0000000
Allied Riser of Xxxxxxx XX 0000000
Allied Riser of Xxxxxxxxxx XX 0000000
Allied Riser of Xxxxxxxx XX 0000000
Allied Riser of Xxxxxxxxxxx XX 0000000
Allied Riser of D.C. DE 3010019
Allied Riser of Xxxxxxx XX 0000000
Allied Riser of Xxxxxxx XX 0000000
Allied Riser of Xxxxxxxx XX 0000000
Allied Riser of Xxxxxxx XX 0000000
Allied Riser of Xxxxxxxx XX 0000000
Allied Riser of Xxxxxxxxx XX 0000000
Allied Riser of Xxxxxxxx XX 0000000
Allied Riser of Xxxxxxxxxxxxx XX 0000000
Allied Riser of Xxxxxxxx XX 0000000
Allied Riser of Xxxxxxxxx XX 0000000
Allied Riser of Xxxxxxxx XX 0000000
Allied Riser of Xxxxxx XX 0000000
Allied Riser of Xxx Xxxxxx XX 0000000
Allied Riser of Xxx Xxxxxx XX 0000000
Allied Riser of Xxx Xxxx XX 0000000
Allied Riser of Xxxxx Xxxxxxxx XX 0000000
Allied Riser of Ohio DE 3004273
Allied Riser of Xxxxxxxx XX 0000000
Allied Riser of Xxxxxxxxxxxx XX 0000000
Allied Riser of Xxxxx Xxxxxx XX 0000000
Allied Riser of Xxxxx Xxxxxxxx XX 0000000
Allied Riser of Xxxxxxxxx XX 0000000
Allied Riser of Xxxxx XX 0000000
Allied Riser of Xxxx XX 0000000
Allied Riser of Xxxxxxxx XX 000000
Allied Riser of Xxxxxxxxxx XX 0000000
Allied Riser of Xxxxxxxxx XX 0000000
A-1
Allied Riser of Tennessee, Inc. DE 00-0000000
Allied Riser of Texas, Inc. DE 00-0000000
Allied Riser of Utah, Inc. DE 00-0000000
Allied Riser of Virginia, Inc. VA 00-0000000
Allied Riser of Washington, Inc. DE 00-0000000
Allied Riser of Wisconsin, Inc. DE 00-0000000
A-2
