EXHIBIT 10.1
SECOND AMENDMENT TO LOAN AGREEMENT
This Second Amendment to Loan Agreement (this "AMENDMENT"), is made as of
this 12th day of May 2005, by and among by and among J. Xxxxxx Xxxxxxxxxx Trust
dated February 26, 1971, an Indiana trust (the "XXXXXXXXXX TRUST"), the Xxxx X.
XxXxxxx Trust dated February 26, 1971, an Illinois trust (the "XXXXXXX TRUST"),
the Xxxx X. Xxxxxxxx Trust dated February 26, 1971, an Indiana trust (the
"XXXXXXXX TRUST" and together with the Xxxxxxxxxx Trust and the XxXxxxx Trust,
the "XXXXXX LENDERS"), Noro-Xxxxxxx Partners V, L.P., a Georgia limited
partnership ("NORO-XXXXXXX"), Xxxxxxxxx Group III, LLC a North Carolina limited
liability company ("WAKEFIELD"; each of the Xxxxxx Lenders, Noro-Xxxxxxx and
Wakefield are a "LENDER" and together are the "LENDERS"), Cypress Communications
Holding Co. Inc., a Delaware corporation, and Cypress Communications, Inc., a
Delaware corporation (each herein called a "BORROWER" and collectively, the
"BORROWERS."
WHEREAS, Borrowers and Lenders are party to that certain Loan Agreement,
dated as of July 16, 2002, as amended by the First Amendment to Loan Agreement
on March 25, 2004, (as the same may be modified, amended or supplemented from
time to time and as modified herein, the "LOAN AGREEMENT"; capitalized terms
used herein and not otherwise defined herein shall have the meanings ascribed to
such terms in the Loan Agreement);
WHEREAS, Borrowers have requested that Lenders agree to certain amendments
to the Loan Agreement, as more fully described herein; and
WHEREAS, Lenders are willing to agree to the amendments requested by
Borrowers, on the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and in the Loan Agreement, Lenders and Borrowers hereby amend
the Loan Agreement and agree as follows:
1. Amendments to Loan Agreement.
Section 1.1 of the Loan Agreement is hereby amended by deleting the
definition of "Term Loan Maturity Date" in its entirety and replacing it with
the following:
"TERM LOAN MATURITY DATE" shall mean:
(i) if on or after the date of this Amendment, the maturity date of
the Senior Debt is extended beyond July 11, 2005, the earlier of (x)
January 16, 2006, or (y) the Business Day immediately following the
maturity, acceleration or termination of the Senior Debt (as so extended),
or
(ii) if on or after the date of this Amendment, the maturity date of
the Senior Debt is not extended beyond July 11, 2005, the earlier of (x)
January 16, 2006 or (ii) the Business Day immediately following the
occurrence of a Qualified Refinancing Event.
Section 1.1 of the Loan Agreement is hereby amended by deleting the
definition of "Fixed Rate" in its entirety and replacing it with the following:
"FIXED RATE" shall mean 14% per annum during the period of July 16,
2002 through July 16, 2005 and shall mean 12% per annum for the period of
July 17, 2005 through the Term Loan Maturity Date, as amended.
Section 2.8 of the Loan Agreement is hereby amended by deleting
"Term Loan Maturity Date" as it appears therein and replacing it with "July 16,
2005".
The Loan Agreement is hereby amended by adding new Section 2.8.1
which reads as follows:
2.8.1 EXTENSION LOAN FEES. Upon execution of the Second Amendment to
the Loan Agreement, Borrowers shall pay each Lender an extension loan fee equal
to 2.5% of the then outstanding principal balance of the Term Loan. The
Borrowers shall pay to each Lender the extension loan fee promptly following the
execution of the Second Amendment to the Loan Agreement by each of the parties
thereto.
2. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of and be binding upon each Lender and each
Borrower and their respective successors, assigns, heirs, executors
and administrators.
3. Severability. Every provision of this Amendment is intended to be
severable. If any term or provision hereof is illegal or invalid for
any reason whatsoever, such illegality or invalidity shall not
affect the remainder of this Amendment.
4. Governing Law. This Amendment shall be deemed to be made under and
governed by the internal laws of the State of Delaware.
5. Entire Agreement. The Loan Agreement and other documents delivered
pursuant thereto and this Amendment constitute the full and entire
understanding and agreement between the Lenders and the Borrowers
with regard to the subject hereof and thereof.
6. Full Force and Effect. Except as specifically amended hereby, the
Loan Agreement shall remain in full force and effect in accordance
with its terms and the Loan Agreement and this Amendment shall be
read, taken and construed as one and the same instrument.
7. Survival. The representations, warranties, covenants and agreements
made herein shall survive the closings of the transactions
contemplated hereby.
8. Headings. The titles of the sections of this Amendment are for
convenience of reference only and are not to be considered in
construing this Amendment.
9. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
IN WITNESS HEREOF, the parties have executed and delivered this Amendment
as of the day and year first above written.
BORROWERS:
CYPRESS COMMUNICATIONS HOLDING CO., INC., a
Delaware corporation
By: /s/ Xxxxxxx X. XxXxxx
-------------------------------------------
Name: Xxxxxxx X. XxXxxx
Title: President & Chief Executive Officer
CYPRESS COMMUNICATIONS, INC., a Delaware
corporation
By: /s/ Xxxxxxx X. XxXxxx
--------------------------------------------
Name: Xxxxxxx X. XxXxxx
Title: President & Chief Executive Officer
LENDERS:
J. XXXXXX XXXXXXXXXX TRUST, dated February 26,
1971, an Indiana trust
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Trustee
XXXX. X. XXXXXXX TRUST, dated February 26, 1971,
an Illinois trust
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Trustee
XXXX X. XXXXXXXX TRUST, dated February 26, 1971,
an Indiana trust
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Trustee
NORO-XXXXXXX PARTNERS V, L.P., a Georgia limited
partnership
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------------------------
Name: ----------------------------
Title: ---------------------------
WAKEFIELD GROUP III LLC, a North Carolina limited
liability company
By:/s/Xxxxxxx X. Xxxxxxx
--------------------------------------------------
Name: ----------------------------
Title: ---------------------------
