Exhibit 10.77.2
FIRST AMENDMENT
TO
CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "First Amendment") is dated
as of the 20th day of October 1997, and entered into among INTERSTATE FIBERNET,
INC., a Delaware corporation (the "Borrower"), the Lenders signatory thereto,
and NATIONSBANK OF TEXAS, N.A., a national banking association, individually and
as Administrative Lender (in such latter capacity, the "Administrative Lender").
WITNESSETH:
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WHEREAS, the Borrower, the Lenders, and the Administrative Lender entered
into a Credit Agreement, dated as of September 17, 1997 for a loan facility in
the amount of $100,000,000 (as amended, restated, waived or otherwise modified
from time to time, the "Credit Agreement"); and
WHEREAS, the Lenders, the Administrative Lender, and the Borrower have
agreed to amend the Credit Agreement to make certain changes to the terms
therein upon the terms and conditions set forth below;
NOW, THEREFORE, for valuable consideration hereby acknowledged, the
Borrower, the Lenders and the Administrative Lender agree as follows:
SECTION 1. Definitions.
(a) Unless specifically defined or redefined below, capitalized
terms used herein shall have the meanings ascribed thereto in the Credit
Agreement.
(b) Definition of Fractional Share Cash Payments. The definition of
"Fractional Share Cash Payments" is hereby added to Article 1 of the Credit
Agreement in alphabetical order on page 8 as follows:
"Fractional Share Cash Payments" means payments of cash by the
Parent, in an aggregate amount not to exceed $50,000, in connection with
the merger of ITC Holding with and into the Parent, to holders of Capital
Stock issued by the Parent, and to holders of options to purchase Capital
Stock assumed by the Parent, or otherwise outstanding at the time of such
merger, in lieu of the issuance by the Parent of fractional shares of
Capital Stock.
SECTION 2. Amendment to Section 2.05(b) of the Credit Agreement. Section
2.05(b) on page 24 of the Credit Agreement shall be deleted in its entirety and
the following Section 2.05(b) shall be substituted in its stead:
(b) Public or Private Insurance of Equity. To the extent that the
Parent, the Borrower or any of its Subsidiaries consummates any public or
private issuance of equity (this provision in and of itself not
constituting permission to do so), then the Parent, the Borrower and its
Subsidiaries shall, (i) to the extent that any net proceeds from any such
transaction are received within 12 months of the Closing Date and such net
proceeds are in excess of $125,000,000, immediately use 50% of such net
proceeds in excess of $125,000,000 to repay the Obligations under the
Revolving Loan and the Term Loan, pro rata, or (ii) to the extent that
clause (i) above is not applicable but the net proceeds from any such
transaction are in excess of $50,000,000, immediately use 50% of such net
proceeds in excess of $50,000,000 to repay the Obligations under the
Revolving Loan and the Term Loan, pro rata.
SECTION 3. Amendment to Section 8.07 of the Credit Agreement. Section 8.07
on pages 61 through 63 of the Credit Agreement shall be amended to delete the
period at the end of subpart (e) and insert"; and" in lieu thereof and to add
the following as new subpart (f) thereto:
(f) The Parent may make Fractional Share Cash Payments in connection
with the merger of ITC Holding with and into the Parent.
SECTION 4. Amendment to Section 8.10 of the Credit Agreement. Section 8.10
on pages 63 and 64 of the Credit Agreement shall be deleted in its entirety and
the following Section 8.10 shall be substituted in its stead:
8.10. Capital Stock. The Borrower shall not, and shall not permit the
Parent or any Subsidiary of the Borrower to (a) make or permit any
transfer, assignment, distribution, mortgage, pledge or gift of any shares
of Pledged Stock, except to another wholly owned direct or indirect
Subsidiary of the Borrower that has executed an Unlimited Guaranty of the
Obligations and (b) issue any Capital Stock other than (i) up to
$125,000,000 in common stock of the Parent; (ii) stock options and common
stock (issued pursuant to the exercise of any such stock options) pursuant
to the 1997 Directors Stock Option Plan and the 1997 Stock Option Plan of
the Parent (as both such Plans may be amended in connection with the merger
referred to in the next clause (iii)); (iii) common and preferred stock of
the Parent (and the common stock into which such preferred stock will be
convertible pursuant to the terms thereof) in exchange for common and
preferred stock of ITC Holding (in connection with the merger of ITC
Holding with and into the Parent) and common stock of the Parent upon the
exercise of outstanding options issued by ITC Holding; and (iv) preferred
stock of the Parent (and the common stock into which such preferred stock
will be convertible pursuant to the
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terms thereof) of SCANA Communications, Inc. pursuant to an earn-out
agreement described in the Offering Memorandum of the Parent dated May
29, 1997.
SECTION 5. Amendment to Section 8.14 of the Credit Agreement. Section
8.14 on page 64 of the Credit Agreement shall be deleted in its entirety and the
following Section 8.14 shall be substituted in its stead:
8.14. Amendment of Senior Notes. The Borrower shall not, and
shall not permit the Parent or any Subsidiary of the Borrower to, amend,
waive or consent to any deviation from any term or provision of any
documentation or agreements relating to the Senior Notes other than the
Supplemental Indenture dated as of October 17, 1997 providing for
Fractional Share Cash Payments.
SECTION 6. Affirmation. The Borrower hereby acknowledges and agrees that
nothing in this First Amendment shall affect the Borrower's obligations under
the Credit Agreement or the other Loan Papers executed in connection therewith
(except as specifically provided in this First Amendment), which remain valid,
binding and enforceable, and except as amended hereby, unamended, or shall
constitute a waiver by the Lenders of any of their rights or remedies, now or at
any time in the future, with respect to any requirement under the Credit
Agreement or the other Loan Papers or with respect to an Event of Default or
Default, occurring now or at any time in the future.
SECTION 7. Conditions Precedent. This First Amendment shall not be
effective until
(a) all proceedings of the Borrower and the Guarantors taken in
connection with this First Amendment and the transactions contemplated
hereby shall be satisfactory in form and substance to the Administrative
Lender and Lenders signatory hereto, and the Administrative Lender
shall have received copies of resolutions or other authorizing
documentation for the Borrower and each of the Guarantors,
(b) affirmation of those certain guaranties executed by each
Guarantor, affirming the guaranties executed and delivered in connection
with the Credit Agreement, and
(c) the Administrative Lender and Lenders shall have each
received such documents, instruments, and certificates, etc., each in
form and substance satisfactory to the Lenders, as the Lenders shall
deem necessary or appropriate in connection with this First Amendment
and the transactions contemplated hereby.
SECTION 8. Representations and Warranties. The Borrower represents and
warrants to the Lenders and the Administrative Lender that (a) this First
Amendment constitutes its legal, valid, and binding obligations, enforceable in
accordance with the terms hereof (subject as to enforcement of remedies to any
applicable bankruptcy, reorganization, moratorium, or
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other laws or principles of equity affecting the enforcement of creditors'
rights generally), (b) there exists no Event of Default or Default under the
Credit Agreement after giving effect to this First Amendment, (c) its
representations and warranties set forth in the Credit Agreement and other Loan
Papers are true and correct on the date hereof after giving effect to this First
Amendment, (d) it has complied with all agreements and conditions to be complied
with by it under the Credit Agreement and the other Loan Papers by the date
hereof, (e) the Credit Agreement, as amended hereby, and the other Loan Papers
remain in full force and effect, and (f) no notice to, or consent of, any Person
is required under the terms of any agreement of the Borrower in connection with
the execution of this First Amendment.
SECTION. 9. Further Assurances. The Borrower shall execute and deliver such
further agreements, documents, instruments, and certificates in form an
substance satisfactory to the Administrative Lender, as the Administrative
Lender or any Lender may deem reasonably necessary or appropriate in connection
with this First Amendment.
SECTION. 10. Counterparts. This First Amendment and the other Loan Papers
may be executed in any number of counterparts, all of which taken together shall
constitute one and the same instrument. In making proof of any such agreement,
it shall not be necessary to produce or account for any counterpart other than
one signed by the party against which enforcement is sought.
SECTION 11. GOVERNING LAW: WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND ALL OTHER LOAN PAPERS SHALL BE DEEMED TO BE
CONTRACTS MADE IN DALLAS, TEXAS, AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE TEXAS (WITHOUT GIVING EFFECT TO CONFLICTS
OF LAWS) AND THE UNITED STATES OF AMERICA. WITHOUT EXCLUDING ANY OTHER
JURISDICTION, THE BORROWER AGREES THAT THE FEDERAL COURTS OF TEXAS LOCATED IN
DALLAS, TEXAS, WILL HAVE JURISDICTION OVER PROCEEDINGS IN CONNECTION HEREWITH.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE BORROWER HEREBY WAIVES ANY RIGHT
THAT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE (WHETHER, A CLAIM IN TORT,
CONTRACT, EQUITY, OR OTHERWISE) ARISING UNDER OR RELATING TO THIS AGREEMENT, THE
OTHER LOAN PAPERS, OR ANY RELATED MATTERS, AND AGREES THAT ANY SUCH DISPUTE
SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
(b) THE BORROWER HEREBY WAIVES PERSONAL SERVICE OF ANY LEGAL PROCESS UPON
IT. THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY
REGISTERED MAIL (RETURN RECEIPT REQUESTED) DIRECTED TO THE BORROWER AT ITS
ADDRESS DESIGNATED FOR NOTICE UNDER THIS AGREEMENT AND SERVICE SO MADE SHALL BE
DEEMED TO BE COMPLETED FIVE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL.
NOTHING IN THIS SECTION
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SHALL AFFECT THE RIGHT OF ADMINISTRATIVE LENDER OR ANY LENDER TO SERVE LEGAL
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
SECTION 12. ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN PAPERS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENT OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, this First Amendment to Credit Agreement is executed as
of the date first set forth above.
THE BORROWER:
INTERSTATE FIBERNET, INC.
/s/ Xxxxxxx X. Xxxxxxx
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By: Xxxxxxx X. Xxxxxxx
Its: Senior Vice President -- Chief
Financial Officer
ADMINISTRATIVE LENDER:
NATIONSBANK OF TEXAS, N.A., as
Administrative Lender
/s/ Xxxxx Xxxxxx
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By: Xxxxx Xxxxxx
Its: Vice President
LENDERS:
NATIONSBANK OF TEXAS, N.A.,
individually as a Lender
/s/ Xxxxx Xxxxxx
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By: Xxxxx Xxxxxx
Its: Vice President
AMSOUTH BANK
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By:
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Its:
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CREDITANSTALT-BANKVEREIN
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By:
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Its:
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By:
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Its:
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MEESPIERSON CAPITAL CORP.
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By:
---------------------------------
Its:
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By:
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Its:
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STATE STREET BANK AND TRUST
COMPANY
/s/ Xxxxxx X. Xxxxx
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By: Xxxxxx X. Xxxxx
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Its: Loan Officer
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CORESTATES BANK, N.A.
/s/ Xxxxxxxxxxx Xxxxxxxx
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By: Xxxxxxxxxxx Xxxxxxxx
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Its: Commercial Officer
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FIRST UNION NATIONAL BANK
/s/ Xxxxx Xxxxxx
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By: Xxxxx Xxxxxx
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Its: Senior Vice President
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REGIONS BANK
/s/ Xxxxx X. Xxxxxx
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By: Xxxxx X. Xxxxxx
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Its: Senior Vice President
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TORONTO DOMINION (TEXAS), INC.
/s/ Xxxx Xxxxxxx
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By: Xxxx Xxxxxxx
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Its: Vice President
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The terms and conditions set forth above are acceptable and agreed to by
each of the following Guarantors, and each such Guarantor hereby affirms it
obligations under its Guaranty of the Obligations:
ITC/\DELTACOM, INC.
/s/ Xxxxxxx X. Xxxxxxx
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By: Xxxxxxx X. Xxxxxxx
Its: Senior Vice President -- Chief
Financial Officer
DELTACOM, INC.
/s/ Xxxxxxx X. Xxxxxxx
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By: Xxxxxxx X. Xxxxxxx
Its: Senior Vice President -- Chief
Financial Officer
GULF STATES TRANSMISSION SYSTEMS, INC.
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
By: Xxxxxxx X. Xxxxxxx
Its: Senior Vice President -- Chief
Financial Officer
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