EXHIBIT 10.1
EXECUTION COPY
AMENDMENT NO. 2
TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 2 TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
("AMENDMENT"), dated as of July 28, 2000, is among KMC TELECOM INC., a Delaware
corporation ("KMC"), KMC TELECOM II, INC., a Delaware corporation ("KMC II"),
KMC TELECOM III, INC., a Delaware corporation ("KMC III"), KMC TELECOM OF
VIRGINIA, INC., a Virginia public service company ("KMC VIRGINIA"), KMC TELECOM
LEASING I LLC, a Delaware limited liability company ("LEASING I"), KMC TELECOM
LEASING II LLC, a Delaware limited liability company ("LEASING II"), KMC TELECOM
LEASING III LLC, a Delaware limited liability company ("LEASING III"), KMC
XXXXXXX.XXX, INC., a Delaware corporation ("XXXXXXX.XXX"); KMC III SERVICES LLC,
a Delaware limited liability company ("SERVICES"; KMC, KMC II, KMC III, KMC
Virginia, Leasing I , Leasing II, Leasing III, Xxxxxxx.xxx and Services being
hereinafter collectively referred to hereinafter as the "BORROWERS"), the
"Lenders" party hereto, FIRST UNION NATIONAL BANK, as administrative agent for
the Lenders (the "AGENT") and CIT LENDING SERVICES CORPORATION (f/k/a NEWCOURT
COMMERCIAL FINANCE CORPORATION), as collateral agent for the Lenders (the
"COLLATERAL AGENT"; the Agent together with the Collateral Agent being referred
to as the "AGENTS").
WHEREAS, the Borrowers, the Agents and the Lenders are parties to
that certain Amended and Restated Loan and Security Agreement dated as of
February 15, 2000, as amended by Amendment No. 1 thereto dated as of March 28,
2000 (as so amended, the "LOAN AGREEMENT"; undefined capitalized terms used
herein shall have the meanings assigned thereto in the Loan Agreement), pursuant
to which the Lenders have agreed to make certain "Loans" and other financial
accommodations to the Borrowers;
WHEREAS, pursuant to an equity closing on June 30, 2000, KMC Telecom
Holdings, Inc. ("KMC HOLDINGS") raised $150,000,000 for contribution to the
Borrowers as cash equity, thereby reducing the unfunded portion of the minimum
Required Contribution to $35,000,000;
WHEREAS, the Borrowers have requested that the Agents and the
Lenders amend the Loan Agreement in the manner set forth herein, and the Agents
and the Lenders have agreed to such request;
NOW, THEREFORE, in consideration of the premises set forth above,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Borrowers, the Agents and the Lenders agree
as follows:
1. AMENDMENT TO THE LOAN AGREEMENT. Effective as of the date
first above written and subject to the satisfaction of the conditions set
forth in SECTION 2 below, the Loan Agreement shall be and hereby is amended as
follows:
1.1 SECTION 1.02 is hereby amended to delete the definition of
"REQUIRED CONTRIBUTION" in its entirety and to substitute therefor the following
definition:
"REQUIRED CONTRIBUTION" shall mean cash capital contributions
to the Borrowers from KMC Holdings in such amount as is necessary to
fully fund the Milestone Plan, but in any event at least
$35,000,000.
1.2 SECTION 5.18 is hereby deleted in its entirety and the following
language is substituted therefor:
"SECTION 5.18. REQUIRED CONTRIBUTION. The Borrowers shall
obtain the Required Contribution on or prior to August 31, 2001."
1.3 CLAUSE (II) of SECTION 6.08(7) is hereby deleted in its entirety
and the following new CLAUSE (II) is substituted therefor:
"(ii) that, if such acquisition is made after the Required
Contribution has been obtained or after August 31, 2001, the
Milestone Plan remains fully funded and that, if such acquisition
is made before the Required Contribution has been obtained, the
acquisition does not result in the Milestone Plan becoming less
fully funded than it was prior to giving effect to such
acquisition;"
1.4 CLAUSE (D) of SECTION 7.01 is hereby deleted in its entirety and
the following new CLAUSE (D) shall be substituted therefor:
(d) CAPITAL EXPENDITURES. As of the last day of each fiscal
quarter, the Borrowers shall not permit capital expenditures on a
combined, cumulative basis beginning on the Closing Date to exceed
the amount projected for each such date in the Milestone Plan by
more than (x) $75,000,000 for the last two fiscal quarters of 2000
and for each fiscal quarter of 2001 and (y) $25,000,000 for any
other fiscal quarter thereafter, which amount is set forth in ITEM 4
on ANNEX B attached hereto, unless any such excess is funded with
cash capital contributions or Qualified Intercompany Loans from KMC
Holdings that are not part of the Required Contribution.
2. CONDITIONS PRECEDENT. This Amendment shall become effective
as of the date above written, if, and only if, the Agents have received on or
prior to the date hereof:
(a) duly executed originals of this Amendment from the
Borrowers, the Requisite Lenders and the Agents,
(b) duly executed originals of Amendment No. 3 to the KMC
Holdings Guaranty, dated as of the date hereof, between KMC
Holdings and the Collateral Agent (the "GUARANTY AMENDMENT"), and
2
(c) evidence that KMC Holdings shall have contributed $150,000,000
to the Borrowers as cash equity.
3. REPRESENTATIONS AND WARRANTIES OF THE BORROWERS. The
Borrowers hereby represent and warrant as follows:
(a) This Amendment and the Loan Agreement, as amended hereby,
constitute legal, valid and binding obligations of the Borrowers and are
enforceable against the Borrowers in accordance with their terms.
(b) Upon the effectiveness of this Amendment, the Borrowers hereby
reaffirm all representations and warranties made in the Loan Agreement, and to
the extent the same are not amended hereby, agree that all such representations
and warranties shall be deemed to have been remade as of the date of delivery of
this Amendment, unless and to the extent that any such representation and
warranty is stated to relate solely to an earlier date, in which case such
representation and warranty shall be true and correct as of such earlier date.
(c) As of the date hereof, and after giving effect to this
Amendment, each Borrower shall be in compliance with all the terms and
provisions set forth in the Loan Agreement, as amended hereby, on its part to be
observed or performed, and no Event of Default or Default shall have occurred
and be continuing.
4. REFERENCE TO AND EFFECT ON THE LOAN AGREEMENT.
(a) Upon the effectiveness of SECTION 1 hereof, on and after the
date hereof, each reference in the Loan Agreement to "this Loan Agreement,"
"hereunder," "hereof," "herein" or words of like import shall mean and be a
reference to the Loan Agreement as amended hereby, and each reference to the
Loan Agreement in any other document, instrument or agreement shall mean and be
a reference to the Loan Agreement as modified hereby.
(b) The Loan Agreement, as amended hereby, and all other documents,
instruments and agreements executed and/or delivered in connection therewith,
shall remain in full force and effect, and are hereby ratified and confirmed.
(c) Except as expressly provided herein, the execution, delivery and
effectiveness of this Amendment shall not operate as a waiver of any right,
power or remedy of the Agents or the Lenders, nor constitute a waiver of any
provision of the Loan Agreement or any other documents, instruments and
agreements executed and/or delivered in connection therewith.
5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE OTHER REMAINING TERMS OF THE LOAN AGREEMENT AND THE
INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAW PROVISIONS) OF THE STATE OF NEW
YORK.
3
6. PARAGRAPH HEADINGS. The paragraph headings contained in
this Amendment are and shall be without substance, meaning or content of any
kind whatsoever and are not a part of the agreement among the parties thereto.
7. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8. LENDERS' CONSENT TO GUARANTY AMENDMENT. By its execution
below, each Lender signatory hereto hereby (a) confirms that a copy of the
proposed Guaranty Amendment has been furnished to such Lender for review and
(b) authorizes and directs the Collateral Agent to execute and deliver such
Guaranty Amendment on its behalf.
4
IN WITNESS WHEREOF, this Amendment has been duly executed as of the
day and year first above written.
THE BORROWERS:
KMC TELECOM INC.
KMC TELECOM II, INC.
KMC TELECOM III, INC.
KMC TELECOM OF VIRGINIA, INC.
KMC XXXXXXX.XXX, INC.
In each case:
By:/S/ XXXXXXX X. XXXXXXX
----------------------
Name:
Title: CFO
KMC TELECOM LEASING I LLC
By: KMC TELECOM INC., as its Sole Member
By:/S/ XXXXXXX X. XXXXXXX
-----------------------
Name:
Title: CFO
KMC TELECOM LEASING II LLC
By: KMC TELECOM INC., as its Sole Member
By:/S/ XXXXXXX X. XXXXXXX
-----------------------
Name:
Title: CFO
KMC TELECOM LEASING III LLC
KMC III SERVICES LLC
In each case:
By: KMC TELECOM III, INC., as its Sole
Member
By:/S/ XXXXXXX X. XXXXXXX
-----------------------
Name:
Title: CFO
FIRST UNION NATIONAL BANK, as the Agent
and as a Lender
By:/S/ XXXX X. XXXX
----------------
Name: Xxxx X. Xxxx
Title: Senior Vice President
CIT LENDING SERVICES CORPORATION
(f/k/a NEWCOURT COMMERCIAL FINANCE
CORPORATION), as the Collateral Agent and as
a Lender
By:/S/ XXXXXXX X. XXXXXXX
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
CANADIAN IMPERIAL BANK OF COMMERCE, as a
Lender
By:---------------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION, as
a Lender
By:/S/ XXXXX X. XXXX
-----------------
Name: Xxxxx X. Xxxx
Title: Manager - Operations
LUCENT TECHNOLOGIES INC., as a Lender
By: /S/ XXXX XXXX
-------------
Name: Xxxx Xxxx
Title: Director - NA Customer Finance
CREDIT SUISSE FIRST BOSTON, as a Lender
By:---------------------------------------
Name:
Title:
DRESDNER BANK AG NEW YORK AND GRAND
CAYMAN BRANCHES, as a Lender
By:/S/ XXXXXXXXX XXXXXXXXX
-----------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Assistant Vice President
By:/S/ XXXXX X. XXXXX
------------------
Name: Xxxxx X. Xxxxx
Title: First Vice President
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as a Lender
By:---------------------------------------
Name:
Title:
By:---------------------------------------
Name:
Title:
XXXXXX XXXXXXX XXXX XXXXXX PRIME INCOME
TRUST, as a Lender
By:---------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A., as a
Lender
By:---------------------------------------
Name:
Title:
KEYPORT LIFE INSURANCE COMPANY, as a
Lender
By:/S/ XXXXX X. XXXXXXX
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Sr. Vice President & Portfolio
Manager
XXXXX XXX FLOATING RATE LIMITED LIABILITY
COMPANY, as a Lender
By:/S/ XXXXX X. XXXXXXX
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
IBM CREDIT CORPORATION, as a Lender
By:/S/ XXXXXX X. XXXXXX
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Manager of Credit
