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EXHIBIT 99.2
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AMENDMENT NO. 5
TO
CREDIT AND GUARANTY AGREEMENT
This AMENDMENT NO. 5, dated as of January 5, 2001 (this
"Amendment"), to the Credit and Guaranty Agreement, dated as of December 9,
1999, as amended by Amendment No. 1, dated as of February 2, 2000, Amendment No.
2, dated as of June 28, 2000, Amendment No. 3, dated as of August 29, 2000 and
Amendment No. 4, dated as of December 8, 2000 (as amended, the "Existing Credit
Agreement"), by and among NORTHPOINT COMMUNICATIONS, INC., a Delaware
corporation ("Company"), NORTHPOINT COMMUNICATIONS GROUP, INC., a Delaware
corporation ("Parent Guarantor"), CERTAIN SUBSIDIARIES OF COMPANY, as
Guarantors, the lenders party thereto from time to time (the "Lenders"), GOLDMAN
SACHS CREDIT PARTNERS L.P., as Lead Arranger, and as Syndication Agent, CANADIAN
IMPERIAL BANK OF COMMERCE ("CIBC"), as Administrative Agent, and CIT LENDING
SERVICES CORPORATION (formerly known as NEWCOURT COMMERCIAL FINANCE CORPORATION,
an affiliate of The CIT Group, Inc.), as Documentation Agent.
RECITALS:
WHEREAS, the terms used herein, including in the preamble and
recitals hereto, not otherwise defined herein or otherwise amended hereby shall
have the meanings ascribed thereto in the Existing Credit Agreement;
WHEREAS, on December 8, 2000, Company, each Guarantor,
Requisite Lenders and the Agents entered into Amendment No. 4 whereby the
Existing Credit Agreement was amended to, among other things, extend the date of
the "Delayed Draw Term Loan Commitment Termination Date" set forth in Section
1.1 thereof and to suspend for a period Company's ability to request Loans under
the Existing Credit Agreement.
WHEREAS, Company has requested, and Requisite Lenders have
agreed, in each case on the terms and conditions set forth herein, that the
Existing Credit Agreement be further amended as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, Company, each Guarantor,
Requisite Lenders and Agents hereby agree as follows:
SECTION 1. AMENDMENT
As of the Amendment Effective Date (as defined in Section 2
hereof), the Existing Credit Agreement shall be amended as set forth in this
Section 1.
1.1 The definition of "Delayed Draw Term Loan Commitment
Termination Date" set forth in Section 1.1 of the Existing Credit
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Agreement is hereby
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amended by deleting the date "January 11, 2001" in subsection (ii)
thereof and inserting in lieu thereof the date "January 18, 2001".
1.4 Section 2.1(c) of the Existing Credit Agreement is hereby
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amended by deleting the date "January 7, 2001" therein and inserting in
lieu thereof the date "January 14, 2000", and by deleting the
references to the date "January 8, 2001" therein and inserting in lieu
thereof the date "January 15, 2001".
1.5 Section 2.3(b)(ii) of the Existing Credit Agreement is
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hereby amended by deleting the date "January 7, 2001" therein and
inserting in lieu thereof the date "January 14, 2000", and by deleting
the references to the date "January 8, 2001" therein and inserting in
lieu thereof the date "January 15, 2001".
1.6 Section 2.4(b) of the Existing Credit Agreement is hereby
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amended by deleting date "January 7, 2001" therein and inserting in
lieu thereof the date "January 14, 2000", and by deleting the
references to the date "January 8, 2001" therein and inserting in lieu
thereof the date "January 15, 2001".
SECTION 2. CONDITIONS PRECEDENT
This Amendment shall be effective as of the date (the
"Amendment Effective Date") on which each of the following conditions shall have
been satisfied (or waived in accordance with Section 10.5 of the Existing Credit
Agreement); provided, each Lender agrees that the execution and delivery to the
Company of its signature page hereto shall be deemed to be the acknowledgement
of such Lender that each of the following conditions precedent in this Section 2
have been duly satisfied or such Lender has waived the satisfaction thereof:
2.1 Administrative Agent shall have received sufficient copies
of this Amendment, originally executed and delivered by each applicable
Credit Party and the Requisite Lenders.
2.2 Company shall have paid to Administrative Agent a sum
equal to all of the reasonable accrued and unpaid out-of-pocket fees of
Agents (including without limitation, expenses for telephonic
conferences, travel and lodging), fees and expenses of counsel and
financial advisors for Lenders and Administrative Agent, including
without limitation the fees and expenses of EYCA and Shearman &
Sterling.
Upon the occurrence of the Amendment Effective Date, the Existing Credit
Agreement as amended by this Amendment and all references in any other Credit
Document (including this Amendment) to the Existing Credit Agreement shall be a
reference to such Agreement as amended hereby.
SECTION 3. ADDITIONAL AGREEMENTS
3.1 The obligation of any Lender to make any Loan, or Issuing
Bank to issue any Letter of Credit, on any Credit Date during the
period of January 15, 2001 through and including January 18, 2001, are
subject to the satisfaction of all conditions precedent
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set forth in Section 4.2 of the Existing Credit Agreement, including,
without limitation, the delivery of a certificate of Company's chief
financial officer as of such Credit Date stating that (i) as of
December 11, 2000 and as of the relevant Credit Date, the
representations and warranties contained in the Existing Credit
Agreement and in the other Credit Documents were and shall be true and
correct in all material respects on and as of December 11, 2000 and as
of that Credit Date to the same extent as though made on and as of such
date, (ii) the Maximum Consolidated Adjusted EBITDA Losses (as defined
in the Existing Credit Agreement) for the fiscal quarter ended December
31, 2000 shall not exceed ($85,000,000) and (iii) the Consolidated
Senior Debt to Consolidated Capitalization ratio for the fiscal quarter
ended December 2000 shall not exceed 0.25:1.00.
3.2 The Lenders hereby agree to temporarily waive any Default
or Event of Default that would arise under Section 6.7(a)(iv) of the
Existing Credit Agreement from (and including) January 1, 2001 to the
earlier of (i) the date immediately preceding any Credit Date on which
the Company has requested under a Funding Notice a Loan or issuance of
a Letter of Credit and (ii) January 12, 2001 (the "Waiver Expiry Date")
and upon the Waiver Expiry Date, such temporary waiver shall expire and
have no further force and effect.
SECTION 4. WAIVER AND RELEASE
Company, Parent Guarantor, Northpoint Communications of
Virginia, Inc. and Northpoint Europe, Inc. hereby waive and agree not to assert
any claims or causes of action arising before the Amendment Effective Date
against the Lenders, the Lead Arranger, the Syndication Agent, the
Administrative Agent or the Documentation Agent or any of their respective
officers, directors, employees, attorneys and agents, on any theory of
liability, whether known or unknown, matured or contingent, including, without
limitation, for special, indirect, consequential or punitive damages, arising
out of or otherwise relating to, or in connection with, this Amendment, the
Loans, the actual or proposed use of the proceeds of the Loans or the Letters of
Credit, the Credit Documents or any of the transactions entered into in
connection therewith; provided, that nothing in this Section 4 shall relieve any
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Lender or any Agent from any of their obligations and agreements under this
Amendment or any other Credit Documents.
SECTION 5. REFERENCE TO AND EFFECT ON THE CREDIT DOCUMENTS
5.1 On and after the Amendment Effective Date, each reference
in the Existing Credit Agreement to "this Agreement," "hereunder,"
"hereof" or words of like import referring to the Existing Credit
Agreement, and each reference in the Notes and other Credit Documents
to "the Credit Agreement," "thereunder," "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference
to the Existing Credit Agreement, as amended and otherwise modified
hereby.
5.2 The Existing Credit Agreement, the Notes and each of the
other Credit Documents, except to the extent of the amendments and
other modifications specifically provided above, are and shall continue
to be in full force and effect and are hereby in all respects ratified
and confirmed by the Credit Parties. Without limiting the generality of
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the foregoing, the Collateral Documents and all of the Collateral
described therein do and shall continue to secure the payment of all
Obligations of the Credit Parties under and in respect of the Credit
Documents, as amended and otherwise modified by this Amendment.
5.3 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AMENDMENT, EXCEPT AS SET FORTH IN SECTION 3.2 HEREOF, THE EXECUTION,
DELIVERY AND EFFECTIVENESS OF THIS AMENDMENT SHALL NOT OPERATE AS A
WAIVER OF ANY RIGHT, ASSERTION, ACT, POSITION, POWER OR REMEDY OF ANY
LENDER OR ANY AGENT UNDER ANY OF THE CREDIT DOCUMENTS, NOR CONSTITUTE A
WAIVER OF ANY PROVISION OF ANY OF THE CREDIT DOCUMENTS INCLUDING,
WITHOUT LIMITATION, THE EXISTENCE AS OF THE DATE HEREOF OR ANY DATE
HEREAFTER, OF ANY EVENT, OCCURRENCE, ACT, CHANGE OR OMISSION WHICH (A)
CONSTITUTES, OR WITH THE PASSAGE OF TIME WOULD CONSTITUTE, A DEFAULT OR
AN EVENT OF DEFAULT UNDER ANY CREDIT DOCUMENT, (B) HAS, OR WITH THE
PASSAGE OF TIME WOULD HAVE CAUSED, CAUSES, EVIDENCED OR EVIDENCES, A
MATERIAL ADVERSE EFFECT (AS DEFINED IN THE EXISTING CREDIT AGREEMENT)
OR (C) CONSTITUTES, OR WITH THE PASSAGE OF TIME WOULD CONSTITUTE, A
BREACH OF ANY REPRESENTATION OR WARRANTY OR COVENANT UNDER THE EXISTING
CREDIT AGREEMENT.
SECTION 6. COSTS AND EXPENSES
In addition to all of its obligations under Section 10.2 of
the Existing Credit Agreement, the Company hereby agrees to pay, upon demand,
(i) all costs and expenses of the Lenders and the Agents incurred or to be
incurred (including, without limitation, the reasonable fees and expenses of
counsel and financial advisors for the Lenders and the Agents) in connection
with the preparation, execution, delivery of this Amendment and (ii) all costs
and expenses of the Lenders and the Agents (including, without limitation, the
reasonable fees and expenses of Shearman & Sterling, as counsel to the Lenders,
Sidley & Austin as counsel to the Administrative Agent, EYCA, as financial
advisor to the Lenders and the Administrative Agent and any other local counsel
retained by the Lenders or the Administrative Agent) in connection with the
review of legal, financial and related documents and information, the review of
Collateral and Collateral Documents and any other matters related to the
Existing Credit Agreement or Credit Documents, and the negotiation and
preparation of documents related to, and other services rendered in connection
with, a proposed debtor in possession credit facility for the Company.
SECTION 7. MISCELLANEOUS
7.1 This Amendment shall be binding upon the parties hereto
and their respective successors and assigns and shall inure to the benefit of
the parties hereto and the successors and assigns of Lenders. No Credit Party's
rights or obligations hereunder or any
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interest therein may be assigned or delegated by any Credit Party without the
prior written consent of all Lenders.
7.2 In case any provision in or obligation hereunder or any
Credit Document shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
7.3 Section headings herein are included herein for
convenience of reference only and shall not constitute a part hereof for any
other purpose or be given any substantive effect.
7.4 THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7.5 EACH OF THE COMPANY, THE GUARANTORS, THE AGENTS AND THE
LENDERS IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AMENDMENT OR THE ACTIONS OF ANY AGENT OR ANY LENDER IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
7.6 This Amendment may be executed in any number of
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. As set forth herein, this Amendment shall become effective upon
the execution of a counterpart thereof by each of the parties hereto and receipt
by Company and Administrative Agent of written or telephonic notification of
such execution and authorization of delivery thereof. Delivery of an executed
counterpart of a signature page to this Amendment by telecopier shall be
effective as delivery of an original manually executed counterpart of this
Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
NORTHPOINT COMMUNICATIONS, INC., as
Company
By: ______________________________________
Name:
Title:
NORTHPOINT COMMUNICATIONS GROUP, INC., as
Parent Guarantor
By: ______________________________________
Name:
Title:
NORTHPOINT COMMUNICATIONS OF VIRGINIA,
INC., as a Subsidiary Guarantor
By: ______________________________________
Name:
Title:
NORTHPOINT EUROPE, INC., as a Subsidiary
Guarantor
By: ______________________________________
Name:
Title:
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GOLDMAN SACHS CREDIT PARTNERS L.P.,
as Lead Arranger, Syndication Agent and a Lender
By: ______________________________________
Authorized Signatory
CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent, Swing Line Lender and Issuing Bank
By: ______________________________________
Name:
Title:
CIBC INC., as a Lender
By: ______________________________________
Name:
Title:
CIT LENDING SERVICES CORPORATION (formerly
known as NEWCOURT COMMERCIAL FINANCE
CORPORATION, an affiliate of The CIT Group, Inc.),
as Documentation Agent and as a Lender
By: ______________________________________
Name:
Title:
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FLEET NATIONAL BANK, as a FIRST UNION NATIONAL BANK, as a
Lender Lender
By: __________________________ By: _______________________________
Name: Name:
Title: Title:
BANK OF MONTREAL, as a Lender PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By: __________________________ By: _______________________________
Name: Name:
Title: Title:
BARCLAYS BANK PLC, as a Lender FINOVA CAPITAL CORPORATION, as
a Lender
By: __________________________ By: _______________________________
Name: Name:
Title: Title:
COAST BUSINESS CREDIT A UNION BANK OF CALIFORNIA, as a
DIVISION OF SOUTHERN PACIFIC Lender
BANK, as a Lender
By: __________________________ By: _______________________________
Name: Name:
Title: Title:
CREDIT SUISSE FIRST BOSTON, FRANKLIN FLOATING RATE TRUST,
as a Lender as a Lender
By: __________________________ By: _______________________________
Name: Name:
Title: Title:
By: __________________________
Name:
Title:
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CREDIT LYONNAIS NEW YORK
BRANCH, as a Lender
By: ___________________________
Name:
Title:
ELC (CAYMAN) LTD., as a Lender
By: ___________________________
Name:
Title:
ELC (CAYMAN) LTD. CDO SERIES
1999-I, as a Lender
By: ___________________________
Name:
Title:
HELLER FINANCIAL, INC., as a
Lender
By: ___________________________
Name:
Title:
