Exhibit 10.37.5
AMENDMENT NO. 2 TO THE
FINANCIAL COVENANTS AND REPORTING REQUIREMENTS ANNEX
AMENDMENT NO. 2 TO THE FINANCIAL COVENANTS AND REPORTING
REQUIREMENTS ANNEX (this "Amendment") dated as of June 1, 2001 among Interstate
FiberNet, Inc. ("FiberNet") and ITC/\DeltaCom Communications, Inc., each as a
lessee (each a "Lessee"), and NTFC Capital Corporation, as lessor ("Lessor").
PRELIMINARY STATEMENTS:
(1) Each Lessee and Lessor have entered into (A) a Master
Lease Agreement dated December 29, 2000 (as heretofore amended, supplemented or
otherwise modified, the "Lease") and (B) a Financial Covenants and Reporting
Requirements Annex dated December 29, 2000 (as heretofore amended, supplemented
or otherwise modified, the "Covenants Annex"). Capitalized terms not otherwise
defined in this Amendment have the same meanings as specified in the Lease.
(2) Each Lessee and Lessor have agreed to amend the Covenants
Annex as hereinafter set forth.
SECTION 1. Amendments to the Covenants Annex. The Covenants
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Annex is, effective as of the date hereof and subject to the satisfaction of the
condition precedent set forth in Section 2, hereby amended as follows:
Section 1.01 of the Senior Credit Agreement (as defined in the
Covenants Annex), incorporated by reference in Section 1 of the
Covenants Annex and attached to the Covenants Annex, is amended to add
the following definitions:
"Investment Agreement" means the Investment
Agreement, dated as of February 27, 2001 and amended as of May 29,
2001, as amended from time to time in accordance with its terms, among
the Parent, ITC Holding Company, Inc., SCANA Corporation and HBK Master
Fund L.P.
"PIK Dividends" means the shares of Series B
Preferred Stock paid or payable as dividends on shares of Series B
Preferred Stock in accordance with the applicable certificate of
designation with respect thereto.
"Series B Preferred Stock" means the shares of any
series of the Parent's cumulative convertible preferred stock which is
designated as "Series B-__ Cumulative Convertible Preferred Stock" and
issued pursuant to the Investment Agreement and the certificate of
designation for such series of cumulative convertible preferred stock,
including, without limitation, PIK Dividends.
The second paragraph of Section 5.02(b) of the Senior Credit
Agreement (as defined in the Covenants Annex), incorporated by reference in
Section 1 of the Covenants Annex
and attached to the Covenants Annex, is amended by deleting the word "and" where
it appears immediately before clause (vii) and inserting the following
immediately after clause (vii):
"; and
(viii) with respect to the Parent, the Series B
Preferred Stock."
SECTION 2. Condition to Effectiveness. This Amendment shall
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become effective as of the date first above written when, and only when, Lessor
shall have received counterparts of this Amendment executed by each Lessee and
Guarantor.
SECTION 3. Representations and Warranties of Each Lessee. Each
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Lessee represents and warrants that:
(a) the representations and warranties of such Lessee
contained in each Lease Document are correct in all material respects on and as
of the date hereof, before and after giving effect to this Amendment, other than
any such representations and warranties that, by their terms, refer to a
specific date other than the date hereof, in which case as of such specific
date;
(b) the representations and warranties set out in Sections
13(b), (c), (d) and (e) are incorporated and set out in full herein with
references therein to "this Agreement" or "Lease Documents" in whatever form
being replaced by "this Amendment";
(c) no Event of Default has occurred and is continuing, or
would result from this Amendment;
(d) Amendment No. 2 to the Senior Credit Agreement among the
parties to the Senior Credit Agreement and dated as of June 1, 2001 is in full
force and effect.
SECTION 4. Reference to and Effect on the Annexes. (a) On and
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after the effectiveness of this Amendment, each reference in the Covenants Annex
to "this Annex," "hereunder," "hereof" or words of like import referring to the
Covenants Annex, shall mean and be a reference to the Covenants Annex, as
amended by this Amendment, and each reference in the Lease Documents to the
"Financial Covenants and Reporting Requirements Annex," "thereunder," "thereof"
or words of like import shall mean and be a reference to the Covenants Annex, as
amended by this Amendment.
(b) The Covenants Annex, as amended by this Amendment, is and
shall continue to be in full force and effect and hereby is in all respects
ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of Lessor under any of the Lease Documents, nor
constitute a waiver of any provision of any of the Lease Documents.
SECTION 5. Consent of FiberNet. FiberNet, as Guarantor under
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the Guaranty, hereby consents to this Amendment and hereby confirms and agrees
that (a) it has received a copy of and reviewed to its satisfaction this
Amendment and, (b) notwithstanding the
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effectiveness of this Amendment, the Guaranty is, and shall continue to be, in
full force and effect and hereby is ratified and confirmed in all respects.
SECTION 6. Execution in Counterparts. This Amendment may be
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executed by one or more of the parties on any number of separate counterparts
(which may be originals or copies sent by facsimile transmission), each of which
counterparts shall be an original.
SECTION 7. Governing Law. This Amendment shall be governed by
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the laws of the State of New York. All parties waive all rights to a jury trial
to the extent permitted by law.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
As Lessee and, solely for purposes of
Section 5 of this Amendment, as Guarantor:
INTERSTATE FIBERNET, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President-CFO
As Lessee:
ITC /\ DELTACOM COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President-CFO
As Lessor:
NTFC CAPITAL CORPORATION
By: /s/ Xxxxxx LePoce
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Name: Xxxxxx X. LePoce
Title: VP Risk/Portfolio Managment
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