Exhibit 10.77.4
FIRST AMENDMENT TO CREDIT AGREEMENT
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THIS FIRST AMENDMENT TO THE FIRST AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") is dated as of the 2nd day of November, 1998, and entered
into among Interstate FiberNet, Inc., a Delaware corporation (herein, together
with its successors and assigns, called the "Borrower"), the Lenders (as defined
in the Credit Agreement as defined below), and NATIONSBANK, N.A., successor by
merger to NationsBank of Texas, N.A., a national banking association, as
Administrative Lender for itself and the Lenders (the "Administrative Lender").
WITNESSETH:
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WHEREAS, the Borrower, the Lenders and the Administrative Lender entered
into a First Amended and Restated Credit Agreement, dated February 24, 1998 (as
amended, restated or otherwise modified from time to time, the "Credit
Agreement");
WHEREAS, the Lenders, the Administrative Lender and the Borrower have
agreed to amend the Credit Agreement 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.
(a) Definitions, in general. Unless specifically defined or redefined
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below, capitalized terms used herein shall have the meanings ascribed thereto in
the Credit Agreement.
(b) Definition of 1998 Senior Notes. The definition of "1998 Senior Notes"
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on page 15 of the Credit Agreement is restated in its entirety as follows:
"1998 Senior Notes" means those certain $160,000,000 8 7/8%
senior notes due March 1, 2008 evidencing unsecured indebtedness
issued by the Parent in March of 1998, in accordance with the terms
of Section 8.02(c) hereof, as exchanged pursuant to that Offer to
Exchange all outstanding 8 7/8% Senior Notes due March 1, 2008 for
registered 8 7/8% Senior Notes Due March 1, 2008.
(c) Definition of 1998 9 3/4% Senior Notes. The definition of "1998 9 3/4%
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Senior Notes" is added on page 15 of the Credit Agreement as follows:
"1998 9 3/4% Senior Notes" means those certain senior notes due 2008
evidencing unsecured indebtedness issued by the Parent in November of
1998, in accordance with the terms of Section 8.02(c) hereof.
(d) Definition of 1998 9 3/4% Senior Note Indenture. The definition of
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"1998 9 3/4% Senior Note Indenture" is added on page 15 of the Credit Agreement
as follows:
"1998 9 3/4% Senior Note Indenture" means the indenture dated as
of November 5, 1998 between the Parent, as issuer, and United States
Trust Company of New York, as Trustee.
(e) Definition of Optional Redemption Rights. The definition of "Optional
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Redemption Rights" on page 16 of the Credit Agreement is restated in its
entirety as follows:
"Optional Redemption Rights" means the option of the Parent to
redeem not more than (i) 35% of the outstanding 1997 Senior Notes for
an amount not to exceed 111% of the principal amount being redeemed,
(ii) 35% of the outstanding 1998 Senior Notes for an amount not to
exceed 108.875% of the principal amount being redeemed, and (iii) 35%
of the outstanding 1998 9 3/4% Senior Notes for an amount not to exceed
109.750% of the principal amount being redeemed, as permitted only if
in accordance with the terms of Section 8.07(h) hereof.
SECTION 2. Section 2.05(c). Section 2.05(c) on page 25 of the Credit
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Agreement is hereby amended and restated in its entirety to read as follows:
(c) Public or Private Issuance of Debt. To the extent that the
Parent, the Borrower or any of its Subsidiaries consummates any public
or private issuance of Debt (this provision in and of itself not
constituting permission to do so), then the Parent, the Borrower and
its Subsidiaries shall immediately use 50% of the net proceeds of any
such transaction in excess of $285,000,000 (excluding the 1997 Senior
Notes but including the 1998 Senior Notes and the 1998 9 3/4% Senior
Notes) to repay the obligations under the Revolving Loan.
SECTION 3. Section 8.2. Section 8.02 on page 59 of the Credit Agreement
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is hereby amended and restated in its entirety to read as follows:
8.02. Debt for Borrowed Money. The Borrower shall not, and
shall not permit the Parent or any Subsidiary of the Borrower to,
create, assume, incur or otherwise become or remain obligated in
respect of, or permit to be outstanding, or suffer to exist any Debt
for Borrowed Money, except:
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(a) with respect to the Parent, the Borrower and its
Subsidiaries, Debt for Borrowed Money under the Loan Papers;
(b) with respect to the Parent, the Borrower and its
Subsidiaries, Debt for Borrowed Money in existence on the Closing Date
described on Schedule 8.02 hereto and not otherwise permitted pursuant
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to this Section 8.02 in the principal amounts and as such Debt for
Borrowed Money exists as of the Closing Date;
(c) with respect to the Parent (i) up to $125,000,000 in
1998 9 3/4% Senior Notes; (ii) the 1998 Senior Notes in an amount not
more than $160,000,000 and due in 2008, on other terms and conditions
acceptable to the Administrative Agent and (iii) the 1991 Senior
Notes;
(d) provided that no Default or Event of Default exists or
would result from the incurrence thereof, with respect to the Borrower
and the wholly owned Subsidiaries of the Borrower, Debt owed to each
other; and
(e) provided that no Default or Event of Default exists or
would result from the incurrence thereof, Debt constituting Capital
Leases or purchase money Debt in an aggregate amount over the term of
this Agreement not to exceed $5,000,000, incurred by the Borrower or
any Subsidiary in connection with any acquisition permitted to be made
in accordance with the terms of Section 8.05(b) hereof.
SECTION 4. Sections 8.07(b) and (c). Sections 8 07(b) and (c) on pages 62
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and 63 of the Credit Agreement are hereby amended and restated in their entirety
to read as follows:
(b) so long as
(i) there exists no Default or Event of Default
both before and after giving effect to any such Restricted
Payment (except an Event of Default under Section 9.01(b)
hereof), and
(ii) with respect to any such distribution relating
to the 1997 Senior Notes, the date any such Distribution is
made is the later of (A) June 30, 2000 and (B) such time as
the balance of the Interest Reserve Escrow Account is zero,
then the Borrower may declare, make and pay Restricted Payments
constituting Dividends to the Parent in an amount not to exceed the
scheduled cash interest due and payable on the outstanding 1997 Senior
Notes, the 1998 Senior Notes, and the 1998 9 3/4% Senior Notes, and
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(c) So long as each of the following is true: (i) the
Borrower has been unable to make a Restricted Payment
constituting a dividend to the Parent pursuant to Section
8.07(b)(i) above for more than 180 consecutive days, and (ii)
there exists at such time no Default or Event of Default under
any of Section 9.01(a), Section 9.01(f) with respect to the
Parent, the Borrower or any Significant Subsidiary, or Section
9.01(u) hereof, and (iii) the Lenders or the Administrative
Lender have not exercised their rights under Section 9.02(a)
hereof, and (iv) the date of such Restricted Payment is prior to
the Maturity Date,
then the Borrower may declare, make and pay Restricted Payments
constituting Dividends to the Parent in an amount not to exceed the
scheduled cash interest due and payable on the outstanding 1998 Senior
Notes and 1998 9 3/4% Senior Notes, and
SECTION 5. Section 8.07(f). Section 8.07(f) on page 63 of the Credit
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Agreement is hereby amended and restated in its entirety to read as follows:
(f) The Parent may make payments of scheduled cash interest on
(i) the outstanding 1997 Senior Notes (A) to the extent such payments
are made from funds in the Interest Reserve Escrow Account, (B) to the
extent the Parent receives permitted Distributions from the Borrower
for such purpose in accordance with the terms of Sections 8.07(b), (c)
and (d) hereof, and (C) to the extent it receives funds from sources
other than the Borrower and its Subsidiaries, (ii) the outstanding
1998 Senior Notes to the extent the Parent (A) receives permitted
Distributions from the Borrower for such purpose in accordance with
the terms of Sections 8.07(b) and (c) hereof, and (B) receives funds
from sources over than the Borrower and its Subsidiaries, and (iii)
the outstanding 1998 9 3/4% Senior Notes to the extent the Parent (A)
receives permitted Distributions from the Borrower for such purpose in
accordance with the terms of Sections 8.07(b) and (c) hereof, and (B)
receives funds from sources other than the Borrower and its
Subsidiaries, and
SECTION 6. Section 8.07(h). Section 8.07(h) on page 64 of the Credit
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Agreement is hereby amended and restated in its entirety to read as follows:
(h) So long as there exists no Default or Event of Default both
before and after giving effect to any such Restricted Payment, the
Parent may exercise its Optional Redemption Rights for a redemption
price (including charges, accrued interest, expenses and penalties) in
the aggregate not in excess of $195,153,437, and
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SECTION 7. Section 8.13. Section 8.13 on page 65 of the Credit Agreement
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is hereby amended and restated in its entirety to read as follows:
8.13. Limitation on Restrictive Agreements. Except those
written agreements entered into in connection with the 1997 Senior
Notes, the 1998 Senior Notes and the 1998 9 3/4% Senior Notes and in
effect on the Effective Date, the Borrower shall not, and shall not
permit the Parent or any Subsidiary of the Borrower to, enter into any
indenture, agreement, instrument, financing document or other
arrangement which, directly or indirectly, prohibits or restrains, or
has the effect of prohibiting or restraining, or imposes materially
adverse conditions upon: (a) the incurrence of indebtedness, (b) the
granting of Liens, (c) the making or granting of Guarantees, (d) the
payment of dividends or Distributions, (e) the purchase, redemption or
retirement of any Capital Stock, (f) the making of loans or advances,
(g) transfers or sales of property or assets (including Capital Stock)
by the Parent, the Borrower or any of its Subsidiaries, (h) the making
of Investments, or (h) any change of control or management.
SECTION 8. Conditions Precedent. This First Amendment shall not be
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effective until the Administrative Lender shall have received executed signature
pages from the Borrower, the Administrative Lender and Majority Lenders.
SECTION 9. Representations and Warranties. The Borrower represents and
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warrants to the Lenders and the Administrative Lender that (a) this First
Amendment is a Loan Paper under the Credit Agreement and constitutes its legal,
valid, and binding obligation, enforceable in accordance with the terms hereof
(subject as to enforcement of remedies to any applicable bankruptcy,
reorganization, moratorium, or other laws or principles of equity affecting the
enforcement of creditors' rights generally), (b) there exists no Default or
Event of Default under the Credit Agreement, (c) its representations and
warranties set forth in the Credit Agreement and other Loan Papers are true and
correct on the date hereof, (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, and (e) the Credit Agreement, as amended hereby,
and the other Loan Papers remain in full force and effect.
SECTION 10. Entire Agreement; Ratification. THE CREDIT AGREEMENT AND THE
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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. EXCEPT AS MODIFIED OR SUPPLEMENTED HEREBY, THE CREDIT AGREEMENT, THE
OTHER LOAN DOCUMENTS AND ALL OTHER DOCUMENTS AND AGREEMENTS EXECUTED IN
CONNECTION THEREWITH SHALL CONTINUE IN FULL FORCE AND EFFECT.
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SECTION 11. Counterparts. This First Amendment may be executed in any
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number of counterparts, all of which taken together shall constitute one and the
same instrument. In making proof hereof, 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 12. GOVERNING LAW. THIS FIRST AMENDMENT AND ALL OTHER LOAN PAPERS
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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 OF 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.
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THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
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IN WITNESS WHEREOF, this First Amendment to the 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, N.A., as Administrative Lender
/s/Xxxxxx X. Xxxxxxxx
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By: Xxxxxx X. Xxxxxxxx
Its: Vice President
LENDERS:
NATIONSBANK, N.A., individually as a Lender
/s/Xxxxxx X. Xxxxxxxx
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By: Xxxxxx X. Xxxxxxxx
Its: Vice President
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BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
/s/Xxxx X. Xxxxx
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By: Xxxx X. Xxxxx
Its: Vice President
/s/Xxxxxx X. Xxxxxxxx
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By: Xxxxxx X. Xxxxxxxx
Its: Executive Vice President
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CORESTATES BANK, N.A.
/s/Xxx X. Xxxxxx
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By: Xxx X. Xxxxxx
Its: Senior Vice President
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REGIONS BANK
/s/Xxxxx Xxxxxx
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By: Xxxxx Xxxxxx
Its: President & CEO
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