Exhibit 10.36
AMENDMENT 2 TO CREDIT AGREEMENT
This Amendment 2 to Credit Agreement (the "Amendment")
is entered into as of June 4, 2001, by and between KLT
Telecom Inc. (the "Lender") and Digital Teleport, Inc. (the
"Borrower").
Whereas, Lender and Borrower have entered into a
certain Credit Agreement dated as of February 21, 2001,
providing for revolving credit loans of up to $25 million in
the aggregate, which was amended by Amendment 1 dated as of
April 30, 2001, to provide, among other things, an increase
in the available commitment to $35 million (as so amended,
the "Credit Agreement"), and
Whereas, Borrower has requested to increase the maximum
borrowing amount under the Credit Agreement, and Lender is
willing to increase such amount on the terms and conditions
herein.
Therefore, in consideration of the of the
undertakings set forth herein and other good and valuable
consideration, the receipt of which is hereby acknowledged,
the parties hereto hereby agree as follows:
1. Capitalized terms used herein and not otherwise defined
shall have the meanings attributed to such terms in the
Credit Agreement.
2. The definition of "Commitment" in Article I of the
Credit Agreement is amended in its entirety to read as
follows:
"Commitment" means the obligation of the Lender to
make Loans not exceeding Forty Five Million Dollars
($45,000,000.00) in aggregate principal amount at any
time outstanding.
3. This Amendment shall take effect on the last to occur
of (i) the execution and delivery of this Amendment by
Borrower and Lender, and (ii) Lender executing and
delivering to Borrower a Second Amended and Restated Demand
Promissory Note, in the form attached hereto as Exhibit A.
4. To induce the Lender to enter into this Amendment, the
Borrower represents and warrants that:
(a) The representations and warranties set forth in
Article IV of the Credit Agreement are true, correct and
complete on the date hereof as if made on and as of the
dated hereof.
(b) No Default exists on the date hereof.
5. The Credit Agreement, as amended hereby, is hereby
ratified, approved and confirmed in all respects.
In witness whereof, Lender and Borrower have executed this
Amendment as of the date first above written.
Digital Teleport, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President and
Chief Financial Officer
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Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
KLT Telecom Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
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SECOND AMENDED AND RESTATED
DEMAND PROMISSORY NOTE
Date:February 21, 2001 Principal Amount:
$45,000,000.00
Digital Teleport, Inc., a Missouri corporation (herein
referred to as "BORROWER"), promises to pay to the order of
KLT Telecom Inc., a Missouri corporation (herein referred to
as "LENDER"), at its offices located at ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ or at such other place as
Lender may designate, the lesser of the principal sum of
Forty Five Million Dollars ($45,000,000.00) (the "Maximum
Principal Amount") or the aggregate unpaid principal amount
of all Loans made by the Lender pursuant to Article II of
the Credit Agreement (as the same may be amended or
modified, the "Agreement") hereinafter referred to, together
with interest on the unpaid principal balance at the rates
and on the dates set forth in the Agreement. The entire
unpaid principal balance of this Note shall be immediately
due and payable UPON DEMAND by Lender, and Borrower
acknowledges that any condition or requirement set forth in
the Agreement or in any other agreement between Borrower and
Lender is not the only basis upon which demand can be made
hereunder.
This Note is issued pursuant to, and is entitled to
the benefits of, the Credit Agreement, dated as of February
21, 2001, among the Borrower and the Lender, to which
Agreement, as it may be amended from time to time, reference
is hereby made for a statement of the terms and conditions
governing this Note, including the terms and conditions
under which this Note may be prepaid. Capitalized terms
used herein and not otherwise defined herein are used with
the meanings attributed to them in the Agreement.
This Note is a revolving line of credit note. The
Lender may make advances of principal to the undersigned
from time to time, pursuant to the provisions of the
Agreement. However, the total amount of principal
outstanding at any one time shall never exceed the Maximum
Principal Amount. All such advances shall be subject to the
terms and conditions set forth in this Note. The amount and
date of principal disbursed under this Note, together with
the amount and date of any payments of principal under this
Note, shall be recorded by Lender. It is agreed that the
amount shown on the official records of Lender as
outstanding from time to time shall constitute PRIMA FACIE
evidence of the amount owing to Lender from the undersigned
pursuant to this Note.
The undersigned and all guarantors, endorsers, sureties
or other persons liable hereon or liable for the payment of
this Note, and each of them, waive diligence, presentment
for payment, demand, protest, and notice of demand, protest
and non-payment, and dishonor and notice of dishonor, and
specifically consent to and waive notice of any and all
renewals, extensions, or modifications which might be made
by the holder hereof as to the payment of this Note and
specifically consent to and waive notice
of the changing of the rate of interest or imposition of any
fees in consideration of any loan renewal, extension or
modification from time to time and hereby consent to and
waive any defense by reason of extension of time for payment
or other indulgence granted by Lender, and further agree
that the failure of the holder of this Note to take or
perfect any security for this Note or the release or
modification of any security for this Note will not affect
the liability of any party liable for the payment of this
Note. Further, the release of any party liable hereon or in
respect to this Note shall not release any other such party.
The pleading of any statute of limitations as a defense to
any demand against the undersigned and all guarantors,
endorsers, sureties or other persons liable herein or liable
for the payment of this Note, is expressly waived by each
and all of said parties.
BORROWER:
Digital Teleport, Inc.
ATTEST: a Missouri corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President Title: SVP & CFO
