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EXHIBIT 4.6
AMENDMENT NO. 1
AMENDMENT NO. 1, dated as of February 9, 2000 (this "Amendment"), to
the Loan and Security Agreement, dated as of April 29, 1999 (the "Loan
Agreement"), by and among US XCHANGE FINANCE COMPANY, L.L.C., a Delaware limited
liability company (the "Borrower"), US XCHANGE, L.L.C., a Michigan limited
liability company ("Holdings"), each Subsidiary (as hereinafter defined) of the
Borrower listed on the signature pages thereto as a Subsidiary Guarantor, the
financial institutions and other entities party thereto as Lenders (as defined
in the Loan Agreement) and GENERAL ELECTRIC CAPITAL CORPORATION, as the
administrative agent for the Lenders (in such capacity, the "Administrative
Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders permit certain
Indebtedness of Holdings to Ronald H. Vander Pol and the Lenders have agreed
thereto as herein provided; and
WHEREAS, the parties to the Loan Agreement, to avoid ambiguity with
respect to the intent of the guaranty set forth in Article 11 of the Loan
Agreement, have also agreed to amend the Loan Agreement as herein provided;
NOW THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereto agree to the following:
1. Defined Terms. Capitalized terms used herein but not defined herein
have the respective meanings ascribed thereto in the Loan Agreement.
2. Amendments. (a) Section 1.1 of the Loan Agreement is amended by
adding the following definition in its appropriate alphabetic order:
' "Permitted Vander Pol Indebtedness": Indebtedness of
Holdings to Ronald H. Vander Pol ("Vander Pol") of up to a principal
amount of $50,000,000 incurred pursuant to the Business Loan Agreement
dated as of August 26, 1999 between Vander Pol and Holdings, a copy of
which has been provided to the Administrative Agent, as long as any
such Indebtedness remains subject to the Intercreditor Agreement dated
as of February 9, 2000 by and among the Borrower, Holdings, the
Administrative Agent and Vander Pol.'
(b) Section 8.1 of the Loan Agreement is amended in its entirety to
read as follows:
"Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except for (a) Indebtedness owed to a Loan Party, (b) in
the case of the Borrower and the Restricted Subsidiaries, Permitted
Indebtedness, (c) in the case of Holdings, Permitted Holdings Debt, (d)
any Indebtedness resulting from Contingent Obligations permitted by
Section 8.3 and (e) Permitted Vander Pol Debt."
(c) Section 8.2(a) of the Loan Agreement is hereby amended by deleting
the word "and" before clause (xii) thereof and inserting the following before
the period at the end of said Section 8.2(a): "Liens on property of Holdings
granted by Holdings to Ronald H. Vander Pol pursuant to a Security Agreement
dated as of August 29, 1999, a copy of which has been provided to the
Administrative Agent, securing Permitted Vander Pol Debt." '
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(d) The following sentence is added to Section 3.13 of the Loan
Agreement:
"Notwithstanding any other provision herein contained to the contrary,
the amount realizable hereunder in respect of the Collateral of a
Grantor other than the Borrower shall not exceed the amount of such
Grantor's guaranty under Article 11."
(e) Section 11.1 of the Loan Agreement is amended by deleting the last
word in the first sentence thereof and substituting therefor the phrase "other
Loan Parties."
3. Representations and Warranties. Each Loan Party hereby represents
and warrants that this Amendment has been duly authorized, executed and
delivered by such party.
4. Reference to and Effect on the Loan Agreement. Except as
specifically amended herein, the Loan Agreement shall remain in full force and
effect and is hereby ratified and confirmed. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as an amendment, waiver or modification of any right, power or remedy of
the Administrative Agent or the Lenders under any of the Loan Documents, nor
constitute an amendment, waiver or modification of any other provisions of the
Loan Documents. This Amendment is a Loan Document.
5. Applicable Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
6. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one contract.
7. Headings. The headings of this Amendment are for convenience of
reference only, are not part of this Amendment and are not to affect the
construction of, or to be taken into consideration interpreting, this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date and year
first above written.
GENERAL ELECTRIC CAPITAL US XCHANGE OF ILLINOIS, L.L.C. as a
CORPORATION, as the Administrative Subsidiary Guarantor
Agent and the Lender
By: /s/ Henry Cruz By: /s/ Richard Postma
--------------------------------- ---------------------------------
Name: Henry Cruz Name: Richard Postma
Title: Porfolio Mgr. Title: Chairman & CEO
US XCHANGE FINANCE COMPANY, L.L.C., US XCHANGE OF INDIANA, L.L.C, as a
as the Borrower Subsidiary Guarantor
By: /s/ Richard Postma
--------------------------------- By: /s/ Richard Postma
Name: Richard Postma ---------------------------------
Title: Chairman & CEO Name: Richard Postma
Title: Chairman & CEO
US XCHANGE, L.L.C., as a Guarantor
US XCHANGE OF MICHIGAN, L.L.C, as a
By: /s/ Richard Postma Subsidiary Guarantor
---------------------------------
Name: Richard Postma By: /s/ Richard Postma
Title: Chairman & CEO ---------------------------------
Name: Richard Postma
US XCHANGE OF WISCONSIN, LLC, as a Title: Chairman & CEO
Subsidiary Guarantor
By: /s/ Richard Postma
---------------------------------
Name: Richard Postma
Title: Chairman & CEO
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