EXECUTION COPY
EXHIBIT 99.2
AMENDMENT and WAIVER entered into as of February 11,
2000 (this "Amendment"), to the Credit Agreement dated as of
January 6, 2000, among SPLITROCK SERVICES, INC., a Delaware
corporation (the "Borrower"), the Lenders party thereto and
CITICORP USA, INC., as Administrative Agent.
A. The Lenders have agreed to extend credit to the Borrower pursuant
to the terms and subject to the conditions set forth in the Credit Agreement.
B. The Borrower has requested that the Required Lenders amend certain
provisions of the Credit Agreement as set forth herein, and the Required Lenders
are willing so to amend such provisions of the Credit Agreement, on the terms
and subject to the conditions set forth in this Amendment.
C. Capitalized terms used but not defined herein have the meanings
assigned to them in the Credit Agreement (as amended hereby).
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendments to Section 1.01 (a) The definition of the term
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"Collateral and Guarantee Requirement" in Section 1.01 of the Credit Agreement
is hereby amended by adding the following new subparagraph (ba) immediately
after the existing subparagraph (b):
(ba) all outstanding Equity Interests of the Borrower shall have been
pledged by Holdings pursuant to the Pledge Agreement and the
Administrative Agent shall have received certificates or other
instruments representing all such Equity Interests, together with
stock powers or other instruments of transfer with respect thereto
endorsed in blank;
(b) The definition of the term "Guarantee Agreement" in Section 1.01
of the Credit Agreement is hereby amended by deleting the existing definition
and replacing it in its entirety as follows:
"Guarantee Agreement" means, collectively, (a) the Subsidiary
Guarantee Agreement, substantially in the form of Exhibit C, made by
the Subsidiary Loan Parties in favor of the Administrative Agent for
the benefit of the Secured Parties and (b) the Parent Guarantee
Agreement, substantially in the form of Exhibit I, made by Holdings in
favor of the Administrative Agent for the benefit of the Secured
Parties.
(c) Section 1.01 of the Credit Agreement is hereby amended by adding
the following definitions in appropriate alphabetical order:
"Holdings" means Splitrock Holdings, Inc., a Delaware corporation.
"MergerSub" means Splitrock MergerSub, Inc., a Delaware corporation.
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(d) The definition of the term "Loan Parties" in Section 1.01 of the
Credit Agreement is hereby amended by deleting the existing definition and
replacing it in its entirety as follows:
"Loan Parties" means Holdings, the Borrower and the Subsidiary Loan
Parties.
(c) The definition of the term "Merger Agreement" in Section 1.01 of
the Credit Agreement is hereby amended by deleting the existing definition and
replacing it in its entirety as follows:
"Merger Agreement" means the Amended and Restated Agreement and Plan
of Merger dated as of February [ ], 2000, by and among the Borrower,
XxXxxx, Southside Acquisition Corporation, a Delaware corporation,
Holdings, and Splitrock Merger Sub, Inc., a Delaware corporation, as
amended, supplemented or otherwise modified from time to time.
(f) The definition of the term "Pledge Agreement" in Section 1.01 of
the Credit Agreement is hereby amended by deleting the existing definition and
replacing it in its entirety as follows:
"Pledge Agreement" means the Pledge Agreement, substantially in the
form of Exhibit E, among Holdings, the Borrower, the Subsidiary Loan
Parties and the Administrative Agent for the benefit of the Secured
Parties.
(g) The definition of the term "Security Agreement" in Section 1.01 of
the Credit Agreement is hereby amended by deleting the existing definition and
replacing it in its entirety as follows:
"Security Agreement" means the Security Agreement, substantially in
the form of Exhibit F, among Holdings, the Borrower, the Subsidiary
Loan Parties and the Administrative Agent for the benefit of the
Secured Parties
(h) The definition of the term "Subsidiary" in Section 1.01 of the
Credit Agreement is hereby amended by deleting the existing definition and
replacing it in its entirety as follows:
"Subsidiary" means any subsidiary of the Borrower and, other than for
the purposes of the Section 3.12 and Article VI, Holdings.
SECTION 2. Amendments to Article VI. Article VI is hereby amended by
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adding the following new Sections 6.02 and 6.03:
SECTION 6.02. Amendment of Merger Agreement. Until the Commitments
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have expired or been terminated and the principal of and interest on
each Revolving Loan and all fees payable hereunder shall have been
paid in full, the Borrower covenants and agrees with the Lenders that
the Borrower will not, and will not permit Holdings or any of the
Subsidiaries to, amend, modify, or waive any of its rights under the
Merger Agreement in a manner materially adverse to the Lenders and not
reasonably satisfactory to the Lenders.
SECTION 6.03. Limitation of Changes in Holding Company Status. Until
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the Commitments have expired or been terminated and the principal of
and
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interest on each Revolving Loan and all fees payable hereunder shall
have been paid in full, the Borrower covenants and agrees with the
Lenders that, notwithstanding any other provision contained herein, it
will not permit Holdings to engage in any activities of any nature
whatsoever (including the incurrence of any Indebtedness or the
Guarantee of any Indebtedness of any Person) other than (a) owning all
the capital stock of the Borrower, (b) transactions pursuant to or
expressly contemplated by the Merger Agreement and (c) its activities
pursuant to and incident to the performance of the Security Documents.
SECTION 6.04. Limitation of Changes in MergerSub Status. Until the
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Commitments have expired or been terminated and the principal of and
interest on each Revolving Loan and all fees payable hereunder shall
have been paid in full, the Borrower covenants and agrees with the
Lenders that, notwithstanding any other provision contained herein, it
will not permit MergerSub to engage in any activities of any nature
whatsoever (including the incurrence of any Indebtedness or the
Guarantee of any Indebtedness of any Person) other than transactions
pursuant to or expressly contemplated by the Merger Agreement.
SECTION 3. Amendment to Section 9.01(a). Section 9.01(a) of the Credit
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Agreement is hereby amended by (a) adding the words "or any Subsidiary"
immediately after the words "if to the Borrower" in line one of such Section and
(b) replacing the name "McGelligan" with the name "XxXxxxxxxx".
SECTION 4. Addition and Amendment of Exhibits. (a) A new Exhibit,
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Exhibit I, substantially in the form of Exhibit A hereto, is added to the Credit
Agreement.
(b) The existing form of Pledge Agreement, contained in Exhibit E to
the Credit Agreement, is deleted in its entirety and replaced by the form of
Pledge Agreement in Exhibit B hereto.
(c) The existing form of Security Agreement, contained in Exhibit F
to the Credit Agreement, is deleted in its entirety and replaced by the form of
Security Agreement in Exhibit C hereto.
SECTION 5. Waiver of Section 5.05. The Lenders hereby waive compliance
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by the Borrower with the requirements of Section 5.05 in respect of Holdings
and MergerSub for so long as the Borrower is in compliance with the requirements
of Sections 6.03 and 6.04.
SECTION 6. Representations and Warranties. The Borrower represents and
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warrants to the Administrative Agent and to each of the Lenders that:
(a) This Amendment has been duly authorized, executed and delivered by
it and constitutes a legal, valid and binding obligation of each Loan Party
hereto, enforceable against such Loan Party in accordance with its terms.
(b) Before and after giving effect to this Amendment, the
representations and warranties set forth in Article III of the Credit Agreement
are true and correct on and as of the date hereof with the same effect as if
made on and as of the date hereof, except to the extent such representations and
warranties expressly relate to an earlier date.
(c) Before and after giving effect to this Amendment, no Event of
Default or Default has occurred and is continuing.
(d) As of, and prior to the date hereof, Holdings and MergerSub have
not undertaken any activities of any nature whatsoever other than the entry into
the Merger Agreement, and Holdings and MergerSub will not hereafter undertake
any activities except as permitted by Section 6.03 of the Credit Agreement.
(e) The consummation of the Mergers (as defined in the Merger
Agreement) does not, and the consummation of the transactions contemplated by
the Credit Agreement and the Merger Agreement do not, conflict with, result in a
breach of or constitute a "Default" or an "Event of Default" (in each case as
defined in the Indenture) under the Indenture.
SECTION 7. Conditions to Effectiveness. This Amendment shall become
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effective as of the date when (a) the Administrative Agent shall have received
counterparts of this Amendment that, when taken together, bear the signatures of
the Borrower and the Required Lenders, (b) the representations and warranties
set forth in Section 4 hereof are true and correct and (c) all fees and expenses
required to be paid or reimbursed by the Borrower pursuant hereto or to the
Credit Agreement shall have been paid or reimbursed, as applicable.
SECTION 8. Credit Agreement. Except as specifically amended hereby,
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the Credit Agreement shall continue in full force and effect in accordance with
the provisions thereof as in existence on the date hereof. From and after the
date hereof, any reference to the Credit Agreement shall mean the Credit
Agreement as amended hereby. This Amendment shall be a Loan Document for all
purposes.
SECTION 9. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAWS OR THE STATE OF NEW YORK.
SECTION 10. Counterparts. This Amendment may be executed in two or
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more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one agreement. Delivery of an executed
signature page to this Amendment by facsimile transmission shall be effective as
delivery of a manually signed counterpart of this Amendment.
SECTION 11. Expenses. The Borrower agrees to reimburse the
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Administrative Agent for its out-of-pocket expenses in connection with this
Amendment, including the reasonable fees, charges and disbursements of Cravath,
Swaine & Xxxxx, counsel for the Administrative Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the day and year
first written above.
SPLITROCK SERVICES, INC.,
by /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: CFO
CITICORP USA, INC., individually and as
Administrative Agent.
by
____________________________
Name:
Title:
