EXHIBIT 10.30
AMENDMENT NO. 1
TO
LOAN AND GUARANTY AGREEMENT
This FIRST AMENDMENT ("First Amendment"), dated as of April 27, 1999, to
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LOAN AND GUARANTY AGREEMENT ("First Priority Loan Agreement"), dated as of April
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5, 1999, among NORTHPOINT COMMUNICATIONS, INC., a Delaware corporation
("Borrower"), NORTHPOINT COMMUNICATIONS OF VIRGINIA, INC., a Virginia
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corporation ("NorthPoint Virginia"), and NORTHPOINT COMMUNICATIONS GROUP, INC.
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(formerly known as NORTHPOINT COMMUNICATIONS HOLDINGS, INC.), a Delaware
corporation ("Holdings"), as Guarantors, the Lenders party hereto from time to
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time ("Lenders"), Xxxxxxx Xxxxx Credit Partners L.P. ("GSCP"), as a Joint Lead
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Arranger (in such capacity, a "Joint Lead Arranger") and Syndication Agent (in
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such capacity, a "Syndication Agent"), Canadian Imperial Bank of Commerce
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("CIBC"), as Administrative Agent (in such capacity, the "Administrative
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Agent"), Newcourt Commercial Finance Corporation ("Newcourt"), as Documentation
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Agent (in such capacity, the "Documentation Agent") and Collateral Agent (in
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such capacity, the "Collateral Agent"), and Capital Syndication Corporation
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("CSC") as a Joint Lead Arranger (in such capacity, a "Joint Lead Arranger").
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Capitalized terms used herein without definition shall have the same meanings
herein as set forth in the First Priority Loan Agreement and in the amendments
contained in Section 1 hereof.
RECITALS
WHEREAS, Company proposes to increase the Revolving Loan Commitment Amount
by $10,000,000 (the "Increased Amount") and has requested that certain Lenders
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agree to provide such Increased Amount and that Requisite Lenders agree to
modify certain provisions of the First Priority Loan Agreement in connection
therewith.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO FIRST PRIORITY LOAN AGREEMENT
1.1 Definitions.
A. Section 1.01 of the First Priority Loan Agreement is hereby
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amended by amending the definitions of "Commitment Amount" and "Revolving Loan
Commitment Amount" as set forth below:
The definition of "Commitment Amount" is hereby amended to read in its
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entirety as follows:
"Commitment Amount" shall mean (a) as to any Lender, the aggregate of
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such Lender's Revolving Loan Commitment Amount and Term Loan Commitment Amount
as set forth opposite such Lender's name on Annex A to this Agreement or in the
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most recent Assignment Agreement executed by such Lender and (b) as to all
Lenders, the aggregate of all Lenders' Revolving Loan Commitment Amounts and
Term Loan Commitment Amounts, which aggregate commitment shall be Sixty Million
Dollars ($60,000,000) on the Closing Date, such amount to be increased to
Seventy Million Dollars ($70,000,000) on the First Amendment Effective Date, as
such amount may be reduced or otherwise adjusted from time to time in accordance
with this Agreement.
The definition of "Revolving Loan Commitment Amount" is hereby amended
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to read in its entirety as follows:
"Revolving Loan Commitment Amount" shall mean (a) as to any Revolving
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Lender, the aggregate commitment of such Revolving Lender to make Revolving
Loans as set forth opposite such Revolving lender's name on Annex A to this
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Agreement or in the most recent Assignment Agreement executed by such Revolving
lender and (b) as to all Revolving Lenders, the aggregate commitment of all
Revolving Lenders to make Revolving Loans, which aggregate commitment shall be
Fifty Million Dollars ($50,000,000) on the Closing Date, such amount to be
increased to Sixty Million Dollars ($60,000,000) on the First Amendment
Effective Date, as such amount may be reduced or otherwise adjusted from time to
time in accordance with this Agreement.
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B. Section 1.01 of the First Priority Loan Agreement is hereby
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further amended by adding the following definitions in appropriate alphabetical
order:
"First Amendment" means that certain First Amendment dated as of April
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27, 1999 by and among Borrower, NorthPoint Virginia, Holdings, Lenders, GSCP,
CIBC, Newcourt and CSC.
"First Amendment Effective Date" means the date of effectiveness of
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Section 1 to the First Amendment.
1.2 Amendments to Article VII
A. Section 7.01(e) of the First Priority Loan Agreement is hereby
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amended to read in its entirety as follows:
(e) Capital Expenditures. As of the last day of each fiscal quarter,
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Borrower and its Subsidiaries shall not permit Capital Expenditures on a
consolidated, cumulative basis from the Closing Date to exceed the correlative
amount set forth below:
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Fiscal Quarter Ending Maximum Cumulative Capital
Expenditures
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June 30, 1999 $ 45,600,000
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September 30, 1999 $ 87,500,000
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December 31, 1999 $122,900,000
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March 31, 2000 $147,800,000
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June 30, 2000 $168,500,000
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September 30, 2000 $172,000,000
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December 31, 2000 $183,700,000
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March 31, 2001 $199,400,000
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June 30, 2001 $213,800,000
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B. Section 7.02(e) of the First Priority Loan Agreement is hereby amended to
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read in its entirety as follows:
(e) Capital Expenditures. Borrower and its Subsidiaries shall not permit
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Capital Expenditures on a consolidated cumulative basis for the period of April
5, 1999 to September 30, 2001 to exceed $253,800,000.
1.3 Amendment to Annex A.
Annex A to the First Priority Loan Agreement is hereby amended to read in
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its entirety as set forth on Annex A hereto.
SECTION 2. AMENDMENT TO INTERCREDITOR AGREEMENT
The Lenders party hereto hereby authorize and direct the Administrative
Agent to enter into an amendment of the Intercreditor Agreement to amend the
definition of "First Priority Loan Agreement Obligations" to read in its
entirety as follows:
"First Priority Loan Agreement Obligations" shall mean all obligations of
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every nature of Borrower or any other Credit Party from time to time owed to
First Priority Facility Agent or the First Priority Facility Lenders or any of
them under the Loan Documents (as defined in the First Priority Loan Agreement);
provided, at any date of determination, the aggregate principal amount of Loans
(as such term is defined in the First Priority Loan Agreement) constituting
"First Priority Loan Agreement Obligations" for purpose hereof shall not exceed
an amount equal to (i) $70,000,000, less (ii) the amount of such Loans paid or
prepaid to and including such date of determination under the First Priority
Loan Agreement.
SECTION 3. CONDITIONS TO EFFECTIVENESS
Section 1 of this First Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "First Amendment
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Effective Date"):
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3.1 Execution. Credit Parties, Requisite Lenders and each Lender
identified on Annex A as providing a portion of the Increased Amount shall have
executed this Amendment.
3.2 Fees. The Administrative Agent and each Lender shall have received
all fees and other amounts and reimbursement of costs and expenses due and
payable on or prior to the First Amendment Effective Date.
3.3 Legal Opinions. The Administrative Agent shall have received such
legal opinions with respect to this First Amendment as it may reasonably
request, in form and substance acceptable to it.
3.4 Necessary Consents. Each Credit Party shall have obtained all consents
necessary or advisable in connection with the transactions contemplated by this
First Amendment.
3.5 Other Documents. Administrative Agent and Lenders shall have received
such other documents and information regarding Credit Parties as Administrative
Agent may reasonably request.
SECTION 4. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend the
First Priority Loan Agreement in the manner provided herein, the Borrower
represents and warrants to each Lender that the following statements are true,
correct and complete in all material respects:
4.1 Corporate Power and Authority. Each Credit Party which is party
hereto has all requisite corporate power and authority to enter into this First
Amendment and to carry out the transactions contemplated by, and perform its
obligations under, the First Priority Loan Agreement as amended by this
Amendment (the "Amended Agreement") and the other Loan Documents.
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4.2 Authorization of Agreements. The execution and delivery of this
Amendment and the performance of the Amended Agreement and the other Loan
Documents have been duly authorized by all necessary corporate action on the
part of each Credit Party.
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4.3 No Conflict. The execution and delivery by each Credit Party of this
First Amendment and the performance by each Credit Party of the Amended
Agreement and the other Loan Documents do not and will not (i) violate (A) any
provision of any law, statute, rule or regulation, or of the certificate or
articles of incorporation or partnership agreement, other constitutive documents
or by-laws of any Credit Party, (B) any applicable order of any court or any
rule, regulation or order of any Governmental Authority or (C) any provision of
any indenture, certificate of designation for preferred stock, agreement or
other instrument to which any Credit Party is a party or by which any of them or
any of their property is or may be bound, (ii) be in conflict with, result in a
breach of or constitute (alone or with notice or lapse of time or both) a
default under any such indenture, certificate of designation for preferred
stock, agreement or other instrument, where any such conflict, violation, breach
or default referred to in clause (i) or (ii) of this Section 3.C., individually
or in the aggregate could reasonably be expected to have a Material Adverse
Effect, (iii) result in or require the creation or imposition of any Lien upon
any of the properties or assets of each Credit Party (other than any Liens
created under any of the Loan Documents in favor of Administrative Agent on
behalf of Lenders), or (iv) require any approval of stockholders or partners or
any approval or consent of any Person under any contractual obligation of each
Credit Party, except for such approvals or consents which will be obtained on or
before the First Amendment Effective Date.
4.4 Governmental Consents. No action, consent or approval of, registration
or filing with or any other action by any Governmental Authority is or will be
required in connection with the execution and delivery by each Credit Party of
this Amendment and the performance by each Credit Party of the Amended Agreement
and the other Loan Documents, except for such actions, consents and approvals
the failure to obtain or make which could not reasonably be expected to result
in a Material Adverse Effect or which have been obtained and are in full force
and effect.
4.5 Binding Obligation. This First Amendment and the Amended Agreement have
been duly executed and delivered by each of the Credit Parties party thereto and
each constitutes a legal, valid and binding obligation of such Credit Party to
the extent a party thereto enforceable against such Credit Party in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws affecting
creditors' rights generally and except as
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enforceability may be limited by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
4.6 Incorporation of Representations and Warranties From Credit Agreement.
The representations and warranties contained in Article III of the Amended
Agreement are and will be true, correct and complete in all material respects on
and as of the First Amendment Effective Date to the same extent as though made
on and as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they remain true, correct
and complete in all material respects on and as of such earlier date.
4.7 Absence of Default. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this First
Amendment that would constitute an Event of Default or a Default.
SECTION 5. MISCELLANEOUS
5.1 Reference to and Effect on the First Priority Loan Agreement and the
Other Loan Documents.
A. On and after the First Amendment Effective Date, each reference
in the First Priority Loan Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the First Priority Loan Agreement,
and each reference in the other Loan Documents to the "First Priority Loan
Agreement", "thereunder", "thereof" or words of like import referring to the
First Priority Loan Agreement shall mean and be a reference to the First
Priority Loan Agreement as amended by this First Amendment.
B. Except as specifically amended by this First Amendment, the First
Priority Loan Agreement and the other Loan Documents shall remain unchanged and
in full force and effect and are hereby ratified and confirmed.
C. The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any provision
of, or Default or Event of Default under, or operate as a waiver of any right,
power or remedy of any Agent or Lender under, the First Priority Loan Agreement
or any of the other Loan Documents.
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5.2 Headings. Section and Subsection headings in this First Amendment are
included herein for convenience of reference only and shall not constitute a
part of this First Amendment for any other purpose or be given any substantive
effect.
5.3 Applicable Law. THIS FIRST AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
5.4 Counterparts. This First Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
NORTHPOINT COMMUNICATIONS, INC.
By: __________________________________
Name:
Title:
NORTHPOINT COMMUNICATIONS GROUP, INC.
By: __________________________________
Name:
Title:
NORTHPOINT COMMUNICATIONS OF VIRGINIA, INC.
By: __________________________________
Name:
Title:
S-1
XXXXXXX XXXXX CREDIT PARTNERS L.P., as Syndication
Agent and Joint Lead Arranger and as a Lender
By: __________________________________
Authorized Signatory
S-2
CANADIAN IMPERIAL BANK OF COMMERCE, as Administrative
Agent and as Lender
By: _________________________________
Name:
Title:
S-3
NEWCOURT COMMERCIAL FINANCE CORPORATION, as
Documentation Agent and Collateral Agent and as a
Lender
By: _________________________________
Name:
Title:
CAPITAL SYNDICATION
CORPORATION, as Joint Lead Arranger
By: _________________________________
Name:
Title:
S-4
ANNEX A
Commitment Amount
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Revolving Loans
Lender Revolving Loan Commitment Amount
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Xxxxxxx Sachs Credit Partners L.P. $21,666,666.67
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Newcourt Commercial Finance Corporation $21,666,666.67
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Canadian Imperial Bank of Commerce $16,666,666.66
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TOTAL $60,000,000
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Term Loans
Lender Term Loan Commitment Amount
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Xxxxxxx Xxxxx Credit Partners L.P. $3,333,333.33
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Newcourt Commercial Finance Corporation $3,333,333.33
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Canadian Imperial Bank of Commerce $3,333,333.34
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TOTAL $10,000,000
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TOTAL COMMITMENTS $70,000,000
ANNEX A-1
