Amendment No. 2 to Credit and Guaranty Agreement among AboveNet, Inc., Lenders, Societe Generale, and CIT Lending Services

 

AMENDMENT NO. 2 TO CREDIT AND GUARANTY AGREEMENT (the “Amendment”) dated as of June 29, 2009, is among AboveNet, Inc., a Delaware corporation, AboveNet Communications, Inc., a Delaware corporation, AboveNet of Utah, LLC, a Delaware limited liability company, AboveNet of VA, LLC, a Virginia limited liability company, and AboveNet International Inc., a Delaware corporation, (hereinafter the “Borrowers”), the Lenders from time to time parties thereto, Societe Generale, as administrative agent (the “Administrative Agent”), and CIT Lending Services Corporation, as documentation agent (the “Documentation Agent”) (the Administrative Agent and the Documentation Agent together, the “Agents”).

 

WHEREAS, the Borrowers, the Agents and the Lenders are parties to that certain Credit and Guaranty Agreement dated as of February 29, 2008 as amended by the Waiver and Amendment No. 1 to the Credit and Guaranty Agreement (as so amended, and as the same may be hereafter further amended, modified, supplemented or restated from time to time, the “Credit Agreement;” undefined capitalized terms used herein shall have the meanings assigned thereto in the Credit Agreement), pursuant to which the Lenders have agreed to make certain “Loans” and other financial accommodations to the Borrowers;

 

WHEREAS, the Borrowers have requested that the Agents and the Lenders amend the Credit Agreement in the manner set forth herein in order to (i) allow for an extension of the Availability Period of the Delayed Draw Loan from June 30, 2009, which is the date currently set forth in sub-section “(A)” of letter “(b)” of the definition of “Availability Period” in the Credit Agreement, to December 31, 2009, and (ii) fix December 31, 2009 as the termination date of the Availability Period for any delayed draw loan under New Loan Commitments, as defined in the Credit Agreement, and the Agents and the Lenders have agreed to such request;

 

WHEREAS, the Borrowers have further requested that the Agents and the Lenders amend the Credit Agreement in the manner set forth herein in order to remove the Restricted Cash financial covenant set forth in Section 8.01(c) of the Credit Agreement; and

 

WHEREAS, the Lenders and the Borrowers are entering into this Amendment pursuant to Section 12.01 of the Credit Agreement.

 

NOW, THEREFORE, in consideration of the premises set forth above, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrowers, the Agents and the Lenders agree as follows:

 

1.           Availability Period for Delayed Draw Loans.  The Availability Period for Delayed Draw Loans shall be extended from June 30, 2009 to December 31, 2009.  The Availability Period for the New Loan Commitments which are Delayed Draw Commitments shall terminate on December 31, 2009. To this effect, the definition of “Availability Period” in Section 1.01 of the Credit Agreement shall therefore be amended and restated in its entirety as follows:

 

““Availability Period” means, (a) with respect to the Revolving Commitments, the period from and including the Closing Date to the earliest of (i) the date one (1) Business Day prior to the Maturity Date, (ii) the date of termination of the Revolving Commitments pursuant to Section 2.06, and (iii) the date of termination of the commitment of each Lender to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions, in each case pursuant to Section 9.02 and (b) (A) with respect to the Delayed Draw Commitments, the period from and including the Closing Date to and including December 31, 2009, or (B) with respect to the New Loan Commitments which are Delayed Draw Commitments the period from and including the NLC Effective Date to and including December 31, 2009.”