EXHIBIT 4.1(a)
AMENDMENT NO. 1
AMENDMENT NO. 1 dated as of September 17, 2001, between METROMEDIA FIBER
NETWORK, INC., a Delaware corporation (the "ISSUER"), each of the Guarantors
listed on the signature pages hereto under the caption "GUARANTORS" (each a
"GUARANTOR" and, collectively, the "GUARANTORS", and the Guarantors collectively
with the Issuer, the "OBLIGORS"), each of the purchasers whose names appear on
the signature pages hereto under the caption "PURCHASERS" (each a "PURCHASER"
and, collectively, the "PURCHASERS") and Citicorp USA, Inc., as administrative
agent (in such capacity, together with its successors in such capacity, the
"ADMINISTRATIVE AGENT").
The Issuer, the Guarantors, the Purchasers and the Administrative Agent are
parties to a Note and Guarantee Agreement dated as of September 6, 2001
providing, subject to the terms and conditions thereof, for the purchase of
notes in an aggregate principal amount equal to $150,000,000. The parties hereto
wish to amend the Note and Guarantee Agreement in certain respects and,
accordingly, hereby agree as follows:
Section 1. DEFINITIONS. Except as otherwise defined in this Amendment No.
1, terms defined in the Note and Guarantee Agreement are used herein as defined
therein.
Section 2. AMENDMENTS. Subject to the execution and delivery hereof by each
of the parties hereto, the Note and Guarantee Agreement shall be amended as
follows:
2.01. References in the Note and Guarantee Agreement (including
references to the Note and Guarantee Agreement as amended hereby) to "this
Agreement" (and indirect references such as "hereunder", "hereby", "herein"
and "hereof") shall be deemed to be references to the Note and Guarantee
Agreement as amended hereby.
2.02. EXTENSION OF CLOSING DATE DEADLINE. Section 2.04(f) of the Note
and Guarantee Agreement shall be amended by deleting the date "September
17, 2001" therein and inserting "October 1, 2001" in lieu thereof.
2.03. CERTAIN ADDITIONAL CONDITIONS. Section 3.01(r) of the Note and
Guarantee Agreement is hereby relettered as Section 3.01(s) and a new
Section 3.01(r) is hereby inserted into the Note and Guarantee Agreement to
read as follows:
"(r) CERTAIN ADDITIONAL CONDITIONS. Evidence satisfactory to the
Purchasers that:
(i) without limiting the generality of the representation
and warranty set forth in Section 4.01(g) which, pursuant to
clause (i) of the last paragraph of this Section 3.01 must be
true and correct as a condition to the purchase of Notes
hereunder, the destruction of the World Trade Center on September
11, 2001, and the collapse of neighboring buildings and market
disruptions as a consequence thereof (and any damage that may
have been caused to fiberoptic networks of the Borrower and its
Restricted Subsidiaries in that area) will not result in a
material adverse effect on the business, assets, results of
operations, financial condition or liabilities of the Borrower
and its Restricted Subsidiaries and
(ii) subsequent to the date hereof (i.e. September 6, 2001)
no adverse change in financial, banking or capital market
conditions has occurred that, in the judgment of each Purchaser,
could materially impair the ultimate syndication or distribution
of the Commitments or Notes issued under this Agreement or
otherwise render the purchase of the Notes inadvisable."
Section 3. MISCELLANEOUS. Except as herein provided, the Note and Guarantee
Agreement shall remain unchanged and in full force and effect (and, without
limiting the generality of the foregoing, nothing herein shall be deemed a
waiver of the condition set forth in Section 3.01(k) of the Note and Guarantee
Agreement, the parties hereto hereby acknowledging that the due diligence
investigation by the Purchasers of the Issuer and its Subsidiaries referred to
therein has not been completed). This Amendment No. 1 may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same amendatory instrument and any of the parties hereto may execute this
Amendment No. 1 by signing any such counterpart. This Amendment No. 1 shall be
governed by, and construed in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
be duly executed and delivered as of the day and year first above written.
METROMEDIA FIBER NETWORK, INC.
By: /s/ Nick Tanzi
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Name: Nick Tanzi
Title: President & CEO
GUARANTORS
METROMEDIA FIBER NETWORK METROMEDIA FIBER NATIONAL
SERVICES, INC. NETWORK, INC.
By: /s/ Nick Tanzi By: /s/ Nick Tanzi
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Name: Nick Tanzi Name: Nick Tanzi
Title: President & CEO Title: President & CEO
ABOVENET COMMUNICATIONS INC. PAIX.NET, INC.
By: /s/ Nick Tanzi By: /s/ Nick Tanzi
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Name: Nick Tanzi Name: Nick Tanzi
Title: President & CEO Title: President & CEO
METROMEDIA FIBER NETWORK SITESMITH INC.
OF NEW JERSEY, INC.
By: /s/ Nick Tanzi By: /s/ Nick Tanzi
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Name: Nick Tanzi Name: Nick Tanzi
Title: President & CEO Title: President & CEO
MFN OF UTAH L.L.C. MFN OF VA, L.L.C.
By: /s/ Nick Tanzi By: /s/ Nick Tanzi
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Name: Nick Tanzi Name: Nick Tanzi
Title: President & CEO Title: President & CEO
METROMEDIA FIBER NETWORK METROMEDIA FIBER NETWORK
OF ILLINIOS, INC. INTERNATIONAL, INC.
By: /s/ Nick Tanzi By: /s/ Nick Tanzi
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Name: Nick Tanzi Name: Nick Tanzi
Title: President & CEO Title: President & CEO
MFN EUROPE FINANCE, INC MFN INTERNATIONAL, L.L.C.
By: /s/ Nick Tanzi By: /s/ Nick Tanzi
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Name: Nick Tanzi Name: Nick Tanzi
Title: President & CEO Title: President & CEO
MFN JAPAN BACKHAUL, INC. MFN PURCHASING, INC.
By: /s/ Nick Tanzi By: /s/ Nick Tanzi
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Name: Nick Tanzi Name: Nick Tanzi
Title: President & CEO Title: President & CEO
THE ADMINISTRATIVE AGENT
CITICORP, USA, INC., as
Administrative Agent
By: /s/ Richard Zagheb
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Name: Richard Zagheb
Title: Vice President
PURCHASERS
CITIBANK USA, INC.
By: /s/ Richard Zagheb
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Name: Richard Zagheb
Title: Vice President
MERRILL LYNCH GLOBAL
ALLOCATION FUND, INC.
By: /s/ Lisa Ann O'Donnell
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Lisa Ann O'Donnell
Director, Merrill Lynch
Investment Managers
Authorized Signatory
MERRILL LYNCH EQUITY/CONVERTIBLE
SERIES GLOBAL ALLOCATION
PORTFOLIO
By: /s/ Lisa Ann O'Donnell
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Lisa Ann O'Donnell
Director, Merrill Lynch
Investment Managers
Authorized Signatory
MERRILL LYNCH VARIABLE SERIES
FUNDS, INC. (MERRILL LYNCH GLOBAL
ALLOCATION FOCUS FUND)
By: /s/ Bryan N. Ison
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Bryan N. Ison
First Vice President, Merrill
Lynch Investment Managers
Authorized Signatory
MERRILL LYNCH SERIES FUND, INC.
(GLOBAL ALLOCATION STRATEGY
PORTFOLIO)
By: /s/ Lisa Ann O'Donnell
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Lisa Ann O'Donnell
Director, Merrill Lynch
Investment Managers
Authorized Signatory
JOHN W. KLUGE, CHASE MANHATTAN
BANK AND STUART SUBOTNICK,
TRUSTEES UNDER A TRUST
AGREEMENT BETWEEN JOHN W KLUGE,
AS GRANTOR AND JOHN W. KLUGE AND
MANUFACTURERS HANOVER TRUST
COMPANY, AS TRUSTEES, DATED MAY
30, 1984, AS AMENDED AND RESTATED
By: /s/ Stuart Subotnick
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Name: Stuart Subotnick
Title: Trustee