Amendment to Use of Proceeds Agreement between Intermedia Communications Inc. and Digex, Incorporated (October 24, 2000)

Summary

This amendment updates a previous agreement between Intermedia Communications Inc. and Digex, Incorporated regarding how Digex can use the funds raised from its public stock offering. It allows Digex to exchange unused offering proceeds with Intermedia for cash, of which at least 70% can be used for general purposes. Any remaining unused funds as of October 31, 2000, must also be exchanged. Both parties make assurances about the proper use of these funds and compliance with related financial agreements.

EX-10.4 5 w42277ex10-4.txt AMENDMENT TO THE USE OF PROCEEDS AGREEMENT 1 EXHIBIT 10.4 INTERMEDIA COMMUNICATIONS INC. ONE INTERMEDIA WAY TAMPA, FLORIDA 33647 October 24, 2000 Digex, Incorporated One Digex Plaza Beltsville, Maryland 20705 Ladies and Gentlemen: Reference is made to the Letter Agreement dated January 24, 2000 (the "Letter Agreement") regarding the use of the net proceeds of the public offering ("Offering") of Class A common stock of Digex, Incorporated ("Digex") pursuant to a Registration Statement on Form S-1 (File #333-94857). Capitalized terms used herein without definition have the meanings set forth for such terms in the Letter Agreement. 1. Intermedia Communications Inc. ("Intermedia") and Digex wish to amend the Letter Agreement by deleting Paragraph 2 of the Letter Agreement and replacing it with the following: (A) From time to time after the date hereof, upon receipt of a request from Intermedia, Digex shall deliver to Intermedia the requested portion of the net proceeds of the Offering that has not been used by Digex to purchase or construct Telecommunications Related Assets (the "Requested Amount") in exchange for an equivalent amount of cash of which at least 70% may be used by Digex for Unrestricted Uses. (B) If on October 31, 2000 there remains an amount of the net proceeds of the Offering that has not been used by Digex to purchase or construct Telecommunications Related Assets and has not been exchanged pursuant to the first sentence of this Paragraph 2 (the "Remaining Amount"), Digex shall promptly deliver the Remaining Amount to Intermedia in exchange for an equivalent amount of cash of which at least 70% may be used by Digex for Unrestricted Uses. (C) Intermedia shall promptly advise Digex as to the amount of cash delivered pursuant to Paragraph 2 which may be used for Unrestricted Uses (the "Unrestricted Exchange Cash"), which shall be no less than the amounts as provided above. 2 Digex, Incorporated Page 2 2. Additional Representations, Warranties and Covenants of Digex and Intermedia Intermedia represents and warrants to Digex that Digex's use of the Unrestricted Exchange Cash for Unrestricted Uses will not violate, or result in a default by Intermedia under, the provisions of the Indenture. Digex represents, warrants and covenants to Intermedia that it shall use the cash received pursuant to Paragraph 2 of the Letter Agreement as amended hereby, other than the Unrestricted Exchange Cash, only to purchase or construct Telecommunications Related Assets. Except as amended by this letter, the Letter Agreement shall remain in full force and effect. Please confirm your understanding and acceptance of the foregoing by signing in the space provided below. Very truly yours, INTERMEDIA COMMUNICATIONS INC. By: /s/ DAVID C. RUBERG ------------------------------ Name: David C. Ruberg Title: Chairman, President & Chief Executive Officer Agreed and Accepted this 24th day of October, 2000 DIGEX, INCORPORATED By: /s/ TIMOTHY M. ADAMS ------------------------- Name: Timothy M. Adams Title: Chief Financial Officer