EXHIBIT 10.16.2
AMENDMENT NO. 1
Dated as of March 28, 2000
to
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Dated as of October 29, 1999
THIS AMENDMENT NO. 1 (this "Amendment") dated as of March 28,
2000 is entered into by and among:
(i) PAETEC COMMUNICATIONS, INC., PAETEC INTERNATIONAL, INC.,
PAETEC ONLINE, INC., PAETEC COMMUNICATIONS OF VIRGINIA, INC.,
PAETEC CAPITAL CORP., CAMPUSLINK COMMUNICATIONS SYSTEMS, INC.,
SELECT SWITCH ACQUISITION CO.,, PARKLINK COMMUNICATIONS, INC.,
and EAST FLORIDA COMMUNICATIONS, INC. (the "Borrowers");
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(ii) CANADIAN IMPERIAL BANK OF COMMERCE ("CIBC"), NEWCOURT
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COMMERCIAL FINANCE CORPORATION, an affiliate of The CIT Group,
Inc. ("Newcourt CFC"), and XXXXXXX XXXXX CAPITAL CORP.
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("Xxxxxxx"), each in its capacity as an assignor hereunder,
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and collectively, the "Assigning Lenders");
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(iii) UNION BANK OF CALIFORNIA, N.A. ("UBOC");
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(iv) GENERAL ELECTRIC CAPITAL CORPORATION (the "Accepting Lender,"
and together with the Assigning Lenders and UBOC, the
"Lenders"); and
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(v) CANADIAN IMPERIAL BANK OF COMMERCE, in its capacity as
administrative agent (in such latter capacity, the "Agent").
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PRELIMINARY STATEMENTS
(A) The Borrowers, the Assigning Lenders, UBOC and the Agent
are parties to that certain Amended and Restated Loan and Security Agreement,
dated as of October 29, 1999 (the "Loan Agreement", the terms defined therein
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being used herein as therein defined unless otherwise defined herein).
(B) The Borrowers, the Assigning Lenders, UBOC, the Agent and
the Accepting Lender wish to enter into this Amendment to evidence assignments
and assumptions from the Assigning Lenders to the Accepting Lender, such that
(i) GECC becomes a Lender under the Loan Agreement and (ii) the Commitments of
the Lenders shall be as set forth on Exhibit A hereto.
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(C) The Borrowers, the Assigning Lenders, UBOC, the Agent and
the Accepting Lender are, on the terms and conditions stated below, agreeable to
amending the Loan
Agreement as set forth below.
SECTION 1. Amendments to the Loan Agreement. The Loan Agreement is
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hereby amended as follows, such amendment to be effective as of the date hereof
subject to the satisfaction of the conditions precedent set forth in Section 2
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hereof:
(a) The Assigning Lenders and the Accepting Lenders hereby agree
among themselves (and the Borrowers and Agent hereby consent to such
agreement) that, on the "Effective Date" (as defined in Section 2
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below), there shall be deemed to have occurred certain assignments from
the Assigning Lenders and related assumptions by the Accepting Lender
with respect to certain rights and obligations of the Assigning Lenders
under the Loan Documents, such that, after giving effect to such
assignments and assumptions, each Lender"s Commitment Amount is as
stated on Exhibit A hereto. The Assigning Lenders make such assignments
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without recourse, representation, or warranty, except as expressly set
forth in Section 3 hereof, and the Accepting Lender accepts and assumes
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such assignments and assumptions on such terms. The Lenders shall make
all appropriate payments and adjustments among themselves to effectuate
the payment and receipt of the appropriate purchase prices for the
assignments and assumptions contemplated by this Section 1.
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Notwithstanding the provisions of Section 11.08 of the Loan Agreement,
the assignments among the Assigning Lenders and the Accepting Lender
contemplated and effected in accordance with this Section 1 and
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reflected on Exhibit A hereto (the "Subject Assignments") (1) shall be
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evidenced by this Amendment and not by separate Assignment and
Acceptance Agreements and (2) shall not require the payment of the
processing fee provided for in Section 11.08(c)(ii) of the Loan
Agreement. On and after the Effective Date, each reference in the Loan
Agreement and the other Loan Documents to "Lender" or "Lenders" shall
include GECC and shall no longer include Xxxxxxx.
(b) Annex A ("Commitment Amounts") to the Loan Agreement is hereby
amended to delete such Annex in its entirety and to substitute therefor
the Annex attached hereto as Exhibit A.
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SECTION 2. Conditions Precedent. This Amendment shall become
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effective and be deemed effective as of the date hereof (the "Effective Date")
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upon (i) receipt by the Agent of counterparts of this Amendment executed by the
Borrowers, the Agent, UBOC, all of the Assigning Lenders and the Accepting
Lender, and (ii) receipt of a Note by GECC, if GECC shall have requested such.
SECTION 3. Representations, Warranties and Covenants.
3.1. The Accepting Lender hereby represents, warrants, and
covenants the following to each of the Assigning Lenders and the
Agent:
(a) This Amendment is the legal, valid and binding
agreement of the Accepting Lender, enforceable in accordance
with its terms;
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(b) The execution and performance by the Accepting
Lender of its duties and obligations under this Amendment and
the Loan Documents will not require any registration with,
notice to, or consent or approval by any Governmental
Authority;
(c) The Accepting Lender is familiar with
transactions of the kind and scope reflected in the Loan
Documents and in this Amendment;
(d) The Accepting Lender has made its own
independent investigation and appraisal of the financial
condition and affairs of the Borrowers, has conducted its own
evaluation of the Loans, the Loan Documents and the
Borrowers" creditworthiness, has made its decision to become
a Lender to the Borrowers under the Loan Agreement
independently and without reliance upon any Assigning Lender
or the Agent, and will continue to do so;
(e) The Accepting Lender is entering into this
Amendment in the ordinary course of its business, and is
acquiring its interest in the Loans for its own account and
not with a view to or for sale in connection with any
subsequent distribution; provided, however, that at all times
the distribution of the Accepting Lender"s property shall,
subject to the terms of the Loan Agreement, be and remain
within its control;
(f) No future assignment or participation by the
Accepting Lender pursuant to Section 11.08 of the Loan
Agreement will require any Assigning Lender, the Agent or the
Borrowers to file any registration statement with the
Securities and Exchange Commission or to apply to qualify
under the blue sky laws of any state;
(g) The Accepting Lender has no loans to, written or
oral agreements with, or equity or other ownership interest
in any of the Borrowers;
(h) As of the Effective Date, the Accepting Lender
is entitled to receive payments of principal and interest in
respect of the Obligations without deduction for or on
account of any taxes imposed by the United States of America
or any political subdivision thereof;
(i) The Accepting Lender is a Permitted Assignee;
(j) The Accepting Lender appoints and authorizes the
Agent to take such actions as administrative agent on its
behalf and to exercise such powers and discretion under the
Loan Agreement as are delegated to the Agent by the terms
thereof, together with such powers and discretion as are
reasonable incidental thereto; and
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(k) The Accepting Lender will perform in accordance
with their terms all of the obligations that by the terms of
the Loan Agreement are required to be performed by it as a
Lender.
3.2. Each of the Assigning Lenders hereby represents,
warrants, and covenants the following to the Accepting Lender and the
Agent:
(a) This Amendment is the legal, valid and binding
agreement of the Assigning Lender, enforceable in accordance
with its terms;
(b) The execution and performance by the Assigning
Lender of its duties and obligations under this Amendment and
the Loan Documents will not require any registration with,
notice to, or consent or approval by any Governmental
Authority;
(c) The Assigning Lender has full power and
authority, and has taken all action necessary to execute and
deliver this Amendment and to fulfill the obligations
hereunder and to consummate the transactions contemplated
hereby;
(d) The Assigning Lender has not previously
assigned, transferred or otherwise disposed of any of the
interests being assigned hereby, and the interests being
assigned hereby are free and clear of any adverse claim,
lien, encumbrance, security interest, restriction on
transfer, purchase option, call or similar right of a third
party, in each case, created by, through or under the
Assigning Lender; and
(e) This Assignment by the Assigning Lender to the
Accepting Lender complies, in all material respects, with the
terms of the Loan Documents.
3.3. Each of the Borrowers hereby represents, warrants, and
covenants the following to each of the Lenders and the Agent:
(a) This Amendment is the legal, valid and binding
agreement of such Borrower, enforceable in accordance with
its terms; and
(b) As of the Effective Date, no Default or Event of
Default has occurred and is continuing.
3.4. Neither the Assigning Lenders (except as provided in
Section 3.2), UBOC nor the Agent make any representations or
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warranties of any kind, nor assume any responsibility or liability
whatsoever, with regard to (a) the Loan Documents or any other
document or instrument furnished pursuant thereto or the Loans or
other Obligations, (b) the creation, validity, genuineness,
enforceability, sufficiency, value or collectibility of any of them,
(c) the amount, value or existence of the Collateral, (d) the
perfection or priority of any Lien upon the
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Collateral, or (e) the financial condition of the Borrowers or any
other obligor or the performance or observance by the Borrowers of
their obligations under any of the Loan Documents. Neither the
Assigning Lenders, UBOC nor the Agent has or will have any duty,
either initially or on a continuing basis, to make any investigation,
evaluation, appraisal of, or any responsibility or liability with
respect to the accuracy or completeness of, any information provided
to the Accepting Lender which has been provided by the Assigning
Lenders or the Agent by the Borrowers. Nothing in this Amendment or
in the Loan Documents shall impose upon the Assigning Lenders, UBOC
or the Agent any fiduciary relationship in respect of the Accepting
Lender.
SECTION 4. Reference to and Effect on the Loan Agreement.
4.1. Upon the effectiveness of this Amendment, each reference in
the Loan Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import shall mean and be a reference to the
Loan Agreement, as amended hereby, and each reference to the Loan
Agreement in any other document, instrument or agreement executed
and/or delivered in connection with the Loan Agreement shall mean and
be a reference to the Loan Agreement as amended hereby.
4.2. The Loan Agreement, as amended hereby, and each of the
other Loan Documents shall remain in full force and effect and are
hereby ratified and confirmed.
4.3. The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of any
Lender or the Agent under the Loan Agreement or any of the other Loan
Documents, nor constitute a waiver of any provision contained
therein, except as specifically set forth herein.
SECTION 5. 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 and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
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CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO ANY CONFLICTS OF LAWS PRINCIPLES THAT REQUIRE OR PERMIT THE
APPLICATION OF THE LAWS OF ANY OTHER STATE OR JURISDICTION.
SECTION 7. Headings. Section headings in this Amendment are included
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herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
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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.
Signature Page to the Amendment
PAETEC COMMUNICATIONS, INC., as a Borrower
PAETEC INTERNATIONAL, INC., as a Borrower
PAETEC ONLINE, INC., as a Borrower
PAETEC COMMUNICATIONS OF VIRGINIA, INC., as a Borrower
PAETEC CAPITAL CORP., as a Borrower
CAMPUSLINK COMMUNICATIONS SYSTEMS, INC., as a Borrower
SELECT SWITCH ACQUISITION CO., as a Borrower
PARKLINK COMMUNICATIONS, INC., as a Borrower
EAST FLORIDA COMMUNICATIONS, INC., as a Borrower
/s/ Xxxxxxx Xxxxxxxx
By: ___________________________________
Name: Xxxxxxx Xxxxxxxx
Title: Vice President, Finance
CANADIAN IMPERIAL BANK OF COMMERCE, as Administrative
Agent and as an Assigning Lender
/s/ Xxxxx Xxxx
By: ___________________________________
Name: Xxxxx Xxxx
Title: Executive Director, CIBC WorldMarkets
Corp. As Appointed
NEWCOURT COMMERCIAL FINANCE CORPORATION,
an affiliate of The CIT Group, Inc., as an Assigning Lender
/s/ Xxxx X. Sicico, II
By: ___________________________________
Name: Xxxx X. Sicico, II
Title: Vice President
XXXXXXX XXXXX CAPITAL CORP., as an Assigning Lender
/s/ Xxxx Xxxx
By: ___________________________________
Name: Xxxx Xxxx
Title: Managing Director
UNION BANK OF CALIFORNIA, N.A. as a Lender
/s/ Xxxxx X. Xxxxxx
By: ___________________________________
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
GENERAL ELECTRIC CAPITAL CORPORATION as an Accepting
Lender
/s/ Xxxxx X. Xxxxxxxxx
By: -----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Manager, Operations
Address: c/o GE Capital Services
Service Finance Group, Inc.
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Portfolio Operations (Telecom)
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
Exhibit A
Annex A to the Loan Agreement
Commitment Amounts
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Lender Commitment Amount
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Canadian Imperial Bank of Commerce $20,000,000.00
Newcourt Commercial Finance Corporation $20,000,000.00
General Electric Capital Corporation $20,000,000.00
Union Bank of California, N.A. $10,000,000.00
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