EXHIBIT 10.31
AMENDMENT NO. 1
TO
SECOND PRIORITY LOAN AND GUARANTY AGREEMENT
This FIRST AMENDMENT ("First Amendment"), dated as of April 27, 1999, to
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SECOND PRIORITY LOAN AND GUARANTY AGREEMENT ("Second Priority Loan Agreement"),
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dated as of April 5, 1999, among NORTHPOINT COMMUNICATIONS, INC., a Delaware
corporation ("Borrower"), NORTHPOINT COMMUNICATIONS OF VIRGINIA, INC., a
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Virginia corporation ("NorthPoint Virginia"), and NORTHPOINT COMMUNICATIONS
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GROUP, INC. (formerly known as NORTHPOINT COMMUNICATIONS HOLDINGS, INC.), a
Delaware corporation ("Holdings"), as Guarantors, the Lenders party hereto from
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time to time ("Lenders"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P. ("GSCP"), as a
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Joint Lead Arranger (in such capacity, a "Joint Lead Arranger") and Syndication
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Agent (in such capacity, a "Syndication Agent"), Newcourt Commercial Finance
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Corporation ("Newcourt"), as Administrative Agent (in such capacity, the
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"Administrative Agent"), Documentation Agent (in such capacity, the
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"Documentation Agent") and Collateral Agent (in such capacity, the "Collateral
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Agent"), and Capital Syndication Corporation ("CSC") as a Joint Lead Arranger
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(in such capacity, a "Joint Lead Arranger"). Capitalized terms used herein
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without definition shall have the same meanings herein as set froth in the
Second Priority Loan Agreement and in the amendments contained in Section 1
hereof.
RECITALS
WHEREAS, Company proposes to increase the Revolving Loan Commitment Amount
under the First Priority Loan Agreement by $10,000,000 (the "Increased Amount")
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and has requested that certain Lenders agree to provide such Increased Amount
and that Requisite Lenders agree to modify certain provisions of the Second
Priority Loan Agreement in connection therewith.
Second Priority Loan Agreement
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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 SECOND PRIORITY LOAN AGREEMENT
1.1 Definitions.
A. Section 1.01 of the Second Priority Loan Agreement is hereby
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amended by amending the definitions of "Additional Interest Amount" and "First
Priority Loans" as set forth below:
The definition of "Additional Interest Amount" is hereby amended to
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read in its entirety as follows:
"Additional Interest Amount" shall mean, for any period, an amount
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equal to the difference between y) the amount of interest that would have been
payable with respect to any First Priority Loans outstanding in an aggregate
amount not exceeding Sixty Million Dollars ($60,000,000) during such period if
the First Priority Applicable Margin were equal to the Second Priority
Applicable Margin and z) the amount of interest that was payable during such
period with respect to such First Priority Loans outstanding in an aggregate
amount not exceeding Sixty Million Dollars ($60,000,000) pursuant to the First
Priority Loan Documents.
The definition of "First Priority Loans" is hereby amended to read in
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its entirety as follows:
"First Priority Loans" shall mean the up to $70,000,000 aggregate
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principal amount of loans made to Borrower pursuant to the First Priority Loan
Documents.
B. Section 1.01 of the Second 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,
Newcourt and CSC.
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Second Priority Loan Agreement
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"First Amendment Effective Date" means the date of effectiveness of
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Section 1 to the First Amendment.
1.2 Amendment to Article II
Section 2.11(a) of the Second Priority Loan Agreement is hereby
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amended to read in its entirety as follows:
(a) Commitment Fee. The Borrower shall pay to the Lenders a
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commitment fee (the "Commitment Fee") for the period commencing on the
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Effective Date and ending on the Revolving Credit Commitment Termination
Date (as such term is defined in the First Priority Loan Agreement),
computed (on the basis of the actual number of days elapsed over a year of
360 days) at the rate of 1.00%, per annum, on an amount equal to (i) the
average daily aggregate amount of unused Revolving Loan Commitment Amounts
(as such term is defined in the First Priority Loan Agreement) less (ii)
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Ten Million Dollars ($10,000,000). Such Commitment Fee, to the extent then
accrued, shall be payable on each Payment Date.
1.3 Amendments to Article VII
A. Section 7.01(c) of the Second Priority Loan Agreement is hereby
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amended to read in its entirety as follows:
(c) 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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Second Priority Loan Agreement
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Fiscal Quarter Ending Maximum Cumulative Capital
Expenditures
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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(d) of the Second Priority Loan Agreement is hereby
amended to read in its entirety as follows:
(d) Capital Expenditures. Borrower and its Subsidiaries shall not
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permit Capital Expenditures on a consolidated cumulative basis for the period of
April 5, 1999 to September 30, 2001 to exceed $253,800,000.
SECTION 2. AMENDMENT TO INTERCREDITOR AGREEMENT
Requisite Lenders 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.
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Second Priority Loan Agreement
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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 and Requisite Lenders shall have executed
this Amendment.
3.2 Fees. The Administrative Agent shall have received all fees and other
amounts and reimbusement 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
Second 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 Second Priority Loan Agreement as amended by this
Amendment (the "Amended Agreement") and the other Loan Documents.
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Second Priority Loan Agreement
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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.
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
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Second Priority Loan Agreement
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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 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 Second Priority Loan Agreement and the
Other Loan Documents.
A. On and after the First Amendment Effective Date, each reference
in the Second Priority Loan Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the Second Priority Loan
Agreement, and each reference in the other Loan Documents to the "Second
Priority Loan Agreement", "thereunder", "thereof" or words of like import
referring to the Second Priority Loan Agreement shall mean and be a reference to
the Second Priority Loan Agreement as amended by this First Amendment.
B. Except as specifically amended by this First Amendment, the
Second Priority Loan Agreement and the other Loan Documents shall remain
unchanged and in full force and effect and are hereby ratified and confirmed.
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Second Priority Loan Agreement
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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 Second Priority Loan Agreement
or any of the other Loan Documents.
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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Second Priority Loan Agreement
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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:
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Name:
Title:
NORTHPOINT COMMUNICATIONS GROUP, INC.
By:
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Name:
Title:
NORTHPOINT COMMUNICATIONS OF VIRGINIA, INC.
By:
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Name:
Title:
S-1
Second Priority Loan Agreement
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▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P., as Syndication
Agent and Joint Lead Arranger and as a Lender
By:
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Authorized Signatory
S-2
Second Priority Loan Agreement
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NEWCOURT COMMERCIAL FINANCE CORPORATION, as
Documentation Agent and Collateral Agent
and as a Lender
By:
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Name:
Title:
CAPITAL SYNDICATION CORPORATION, as Joint
Lead Arranger
By:
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Name:
Title:
S-3