Exhibit 10.3
AMENDMENT NO. 2
AND WAIVER
TO
NOTE PURCHASE AGREEMENT
THIS AMENDMENT NO. 2 AND WAIVER TO NOTE PURCHASE AGREEMENT, dated
as of March 24, 1999 (this "Agreement"), among USN COMMUNICATIONS, INC., a
Delaware corporation (the "Company"), XXXXXXX XXXXX GLOBAL ALLOCATION FUND,
INC. ("MLGAF") and CORECOMM LIMITED ("CoreComm"; MLGAF and Corecome are
individually referred to as a "Purchaser" and collectively as the
"Purchasers").
W I T N E S S E T H:
WHEREAS, the Company and the Purchasers are parties to the Note
Purchase Agreement, dated as of February 23, 1999, as amended pursuant to
Amendment No. 1, dated as of March 24, 1999 (the "Existing Note
Agreement"); and
WHEREAS, the Event of Default exists under Section 11.1(l) of the
Existing Note Agreement (the "Existing Event of Default"); and
WHEREAS, the Company has requested that, as of the Effective
Date, the Existing Note Agreement be further amended as herein provided and
the Existing Event of Default be waived; and
WHEREAS, the Purchasers are willing, subject to the terms and
conditions hereinafter set forth, to make such further amendments and waive
the Existing Event of Default as of the Effective Date;
NOW, THEREFORE, in consideration of the agreements herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Definitions. The following terms (whether
or not underscored) when used in this Agreement shall have the following
meanings:
"Agreement" is defined in the preamble.
"Amended Note Agreement" means the Existing Note Agreement as
amended by this Agreement as of the Effective Date.
"Company" is defined in the preamble.
"CoreComm" is defined in the preamble.
"Effective Date" is defined in Section 5.1.
"Existing Event of Default" is defined in the second recital.
"Existing Note Agreement" is defined in the first recital.
"MLGAF" is defined in the preamble.
"Purchasers" is defined the in preamble.
Section 1.2 Other Definitions. Unless otherwise defined or the
context otherwise requires, terms used herein (including in the preamble
and recitals hereto) have the meanings provided for in the Existing Note
Agreements.
ARTICLE II
AMENDMENTS
Effective on (and subject to the occurrence of ) the Effective Date
following amendments are made to the Existing Note Agreement:
Section 2.1 Amendments to Section 1. Section 1 of the Existing
Note Agreement is amended by deleting reference to "$6,000,000" on the
first line and inserting in lieu thereof "$3,169,930".
Section 2.2 Amendments to Section 3.2. Section 3.2 of the
Existing Note Agreement is amended by deleted on the fourth line reference
to "March 22, 1999" and inserting in lieu thereof "May 14, 1999".
Section 2.3 Amendments to Section 4.B. The first sentence of
Section 4.B of the Existing Note Agreement is amended by inserting after
the phrase "subject to" on the second line thereof the phrase "two Business
Days notice by the Company to you and to".
Section 2.4 Amendments to Section 11.1. Section 11.1(l) of the
Existing Note Agreement is amended by deleting reference to "March 22,
1999" and inserting in lieu thereof "April 6, 1999".
Section 2.5 Amendments to Annex I. Section I of the Existing
Note Agreement is amended by deleted each reference therein to "$2,000,000"
and inserting in lieu thereof "$584,965".
ARTICLE III
WAIVER
Effective on (and subject to the occurrence of) the Effective Date,
the Existing Event of Default is waived.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Purchasers to make the amendment provided
for in Article II and the waiver provided for in Article III, the Company
hereby represents and warrants, as of the Effective Date, that each of the
representations and warranties of the Company contained in the Existing
Note Agreement and in the other Note Documents is true and correct in all
material respects as of the Effective Date (except, if any such
representation and warranty relates to an earlier date, such representation
and warranty shall be true and correct in all material respects as of such
earlier date) and both immediately before and after giving effect to the
provisions of this Agreement no Default or Event of Default (other than the
Existing Event of Default being waived hereby) has occurred and is
continued.
ARTICLE V
CONDITIONS TO EFFECTIVENESS
Section 5.1 Effective Date. The amendments set forth in Article
II and the waiver set forth in Article III shall become effective on such
date (herein called the "Effective Date") when the relevant conditions set
forth in this Section 5.1 have been satisfied.
Section 5.1.1 Execution of Agreement. MLGAF or its counsel
shall have received fully executed counterparts of the Agreement.
Section 5.1.2 Representations and Warranties. The
representations and warranties made by the Company pursuant to Article III
as of the Effective Date shall be true and correct.
Section 5.1.3 Reservation of Rights Agreement. MLGAF or its
legal counsel shall be received fully executed counterparts of the
Reservation of Rights Agreement, dated as of the date hereto, among the
parties hereto.
Section 5.1.4 Final DIP Order. The Final DIP Order (a) shall
have been entered upon an application of the Company satisfactory in form
and substance to each Purchaser, (b) shall be in full force and effect and
(c) shall not have been vacated, stayed, reversed, rescinded, modified or
amended in any respect.
Section 5.1.5 Payment of Legal Fees. The Company shall have
paid all invoiced legal fees that are payable pursuant to Section 6.6.
Section 5.2 Expiration. If the Effective Date shall not have
occurred on or prior to April 6, 1999 the agreement of the parties in this
Agreement shall, unless otherwise agreed by the Purchasers, terminate
automatically on such date without further action or notice to any Person.
ARTICLE VI
ACKNOWLEDGMENT OF SUBSIDIARIES
By executing the acknowledgment to this Agreement, each of the
Subsidiaries of the Company set forth on the signature pages hereto
confirms and agrees that their obligations under the Note Documents are,
and shall continue to be, in full force and effect and are hereby ratified
and confirmed in all respects, except that on or after the Effective Date
each reference to the Note Agreement therein shall refer to the Note
Agreement after giving effect to this Agreement and all prior amendments to
the Note Agreement.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Cross-References. References in this Agreement to
any Article or section are, unless otherwise specified, to such Article or
Section of this Agreement.
Section 7.2 Note Document Pursuant to Credit Agreement. This
Agreement is a Note Document executed pursuant to the Amended Note
Agreement. Except as expressly amended hereby, all of the representations,
warranties, terms, covenants and conditions contained in the Existing Note
Agreement and each other Note Document shall remain unamended or otherwise
unmodified and in full force and effect.
Section 7.3 Limitation of Amendments, etc. The amendments set
forth in Article II and the waiver set forth in Article III shall be
limited precisely as provided for herein and shall not be deemed to be a
waiver of, amendment of, consent to or modification of any other term or
provision of any other Note Document or of any of the Company's
Subsidiaries which would require the consent of any of the Lenders under
the Existing Note Agreement or any other Note Document.
Section 7.4 Counterparts. This Agreement may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be
an original and all of which shall constitute together but one and the same
agreement.
Section 7.5 Successors and Assigns. This Agreement may be
executed by the parties hereto in several counterparts, each of which shall
be deemed to be an original and all of which shall constitute together but
one and the same agreement.
Section 7.6 Costs and Expenses. The Company agrees to pay all
reasonable costs and expenses incurred by legal counsel for MLGAF and
CoreComm incurred in connection with the execution and delivery of this
Agreement and the other agreements and documents entered into in connection
herewith; provided that the aggregate amount paid to legal counsel for
CoreComm in connection with this Agreement and the Transaction shall not
exceed $12,000.
Section 7.7 GOVERNING LAW; WAIVER OF JURY TRIAL; ENTIRE
AGREEMENT. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. EACH PERSON A PARTY HERETO
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION ARISING UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ANY AGREEMENT OR DOCUMENT ENTERED INTO IN CONNECTION HEREWITH.
THIS AGREEMENT CONSTITUTES THE ENTIRE UNDERSTANDING AMONG THE PARTIES
HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ANY PRIOR
AGREEMENT, WRITTEN OR ORAL, WITH RESPECT HERETO.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers hereunto duly authorized as of
the day and year first above written.
USN COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
XXXXXXX XXXXX GLOBAL ALLOCATION FUND, INC.
By: /s/ Xxxxx X. Xxxx
--------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
CORECOMM LIMITED
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President and
General Counsel
Acknowledged and Agreed:
U.S. NETWORK CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
FONENET/OHIO, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
USN COMMUNICATIONS MIDWEST, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
USN COMMUNICATIONS NORTHEAST, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
QUEST UNITED, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
USN COMMUNICATIONS LONG DISTANCE, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
USN SOLUTIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
USN COMMUNICATIONS ATLANTIC, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
USN COMMUNICATION VIRGINIA, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
USN COMMUNICATIONS SOUTHWEST, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
USN COMMUNICATIONS MAINE, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
USN WIRELESS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
CONNECTICUT TELEPHONE AND COMMUNICATION SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
CONNECTICUT MOBILECOM, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
USN WIRELESS OF RHODE ISLAND, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
USN WIRELESS OF MASSACHUSETTS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
USN COMMUNICATIONS WEST, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
