EXHIBIT 99.1
AMENDMENT NO. 2
TO
DEBTOR IN POSSESSION CREDIT, SECURITY AND GUARANTY AGREEMENT
This AMENDMENT NO. 2, dated as of February 7, 2001 (this "Amendment"), to
the Debtor in Possession Credit, Security and Guaranty Agreement, dated as of
January 16, 2001 (as amended by Amendment No. 1 dated as of January 26, 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:
Section 6.01(d) of the Credit Agreement is hereby amended by adding at the
end of subclause (A) thereof after the language "a Responsible Officer becomes
aware of such failure" the new language "(unless the Borrower shall have failed
to deliver written notice of such failure to the Administrative Agent and the
Administrative Agent shall have actual knowledge of such failure and shall have
failed to provide written notice thereof to the Borrower)."
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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 and
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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 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.
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SECTION 7. Governing Law. This Amendment shall be governed by, and
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construed in accordance with, the law 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 /s/ Xxxxxxx X. Xxxxxxx
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Title:
NORTHPOINT COMMUNICATIONS GROUP,
INC., as Parent Guarantor
By /s/ Xxxxxxx X. Xxxxxxx
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Title:
NORTHPOINT COMMUNICATIONS OF
VIRGINIA, INC., as a Subsidiary Guarantor
By /s/ Xxxxxxx X. Xxxxxxx
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Title:
NORTHPOINT INTERNATIONAL, INC., as a
Subsidiary Guarantor
By /s/ Xxxxxxx X. Xxxxxxx
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Title:
NORTHPOINT CANADA INC., as a Guarantor
By /s/ Xxxxxxx X. Xxxxxxx
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Title:
CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent
By /s/ Xxx Xxxxx
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Title: ASSISTANT GENERAL MANAGER
Initial Lenders
CIBC INC., as a Lender
By /s/ Xxx Xxxxx
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Title: Agent
BANK OF MONTREAL, as a Lender
By /s/ X. X. Xxxxxxxx
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Title: Vice-President
BARCLAYS BANK PLC, as a Lender
By /s/ Xxxxxx X. Xxxxxx, XX.
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Title: DIRECTOR
CIT LENDING SERVICES CORPORATION,
an affiliate of THE CIT GROUP, INC.,
as a Lender
By /s/ Xxxxxxx Xxxxx
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Title: V.P.
CREDIT LYONNAIS NEW YORK
BRANCH, as a Lender
By /s/ XXXXX X. XXXXXXX
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Title: VICE PRESIDENT
FIRST UNION NATIONAL BANK, as a
Lender
By /s/ Xxxxx X. Xxxxxxxx
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Title: SVP/ Director
FRANKLIN FLOATING RATE TRUST, as
a Lender
By /s/ Xxxxxxxx Xxxxxx
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Title: Vice President
XXXXXX FINANCIAL, INC., as a
Lender
By: X. Xxxxx Callehugh
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Title: Senior Vice President
