THIRD AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
THIS THIRD AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT (the
"Agreement") is made and entered into as of this 15th day of July, 1999, between
GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation having an office at
0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, as lender and
agent ("Lender"), and BUSINESS TELECOM, INC., a North Carolina corporation
having an office at 0000 Xxx Xxxxx Xxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000
("Borrower").
W I T N E S S E T H:
WHEREAS, Lender and Borrower are party to that certain Second Amended
and Restated Loan Agreement, dated as of September 22, 1997 (as the same has
been amended by (i) that certain First Amendment to Second Amended and Restated
Loan Agreement, dated May 6, 1998 and (ii) that certain Second Amendment to
Second Amended and Restated Loan Agreement, dated June 30, 1998, as so amended,
the "Loan Agreement;" all capitalized terms used herein and not otherwise
expressly defined herein shall have the respective meanings given to such terms
in the Loan Agreement); and
WHEREAS, Lender and Borrower desire to amend the Loan Agreement as set
forth herein.
NOW, THEREFORE, in consideration of the foregoing premises, and other
good and valuable consideration, the receipt and legal sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:
Amendments to the Loan Agreement. The Loan Agreement is hereby amended
as follows:
(a) The Loan Agreement is hereby amended by making the
following changes to Section 6.11 thereof:
(i) Section 6.11(d) is hereby amended by
deleting the reference to the number "($1,000,000)" therefrom and inserting
in lieu thereof the number "($2,000,000)".
(ii) Section 6.11(e) is hereby deleted in
its entirety and the following is inserted in lieu thereof:
(e) Accounts Payable. Borrower shall not
permit as of the end of any Fiscal Month its Accounts Payable
Outstanding to exceed 85 days; provided, however, that for the
Fiscal Months of April 1999, May 1999, June 1999 and July
1999, Borrower shall not permit its Accounts Payable
Outstanding to exceed 140 days.
Representations, Warranties, Covenants and Acknowledgments;
Release. To induce Lender to enter into this Agreement:
a. Borrower does hereby represent and warrant that (i) as of the date hereof,
all of the representations and warranties made or deemed to be made under the
Loan Documents are true and correct, except such representations and warranties
which, by their express terms, are applicable only to the Closing Date, (ii) as
of the date hereof, after giving effect to the terms hereof, there exists no
Default or Event of Default under the Loan Agreement or any of the Loan
Documents, (iii) Borrower has the power and is duly authorized to enter into,
deliver and perform this Agreement, and (iv) this Agreement and each of the Loan
Documents is the legal, valid and binding obligation of the Borrower enforceable
against it in accordance with its terms; and
b. Borrower does hereby reaffirm each of the agreements, covenants, and
undertakings set forth in the Loan Agreement and each and every other Loan
Document executed in connection therewith or pursuant thereto as if Borrower
were making said agreements, covenants and undertakings on the date hereof; and
c. Borrower does hereby acknowledge and agree that no right of offset, defense,
counterclaim, claim, causes of action or objection in favor of Borrower against
Lender exists arising out of or with respect to (i) the Obligations, this
Agreement, the Loan Agreement or any of the other Loan Documents, (ii) any other
documents now or heretofore evidencing, securing or in any way relating to the
foregoing or (iii) the administration or funding of the Revolving Credit Loans
or the Capex Facility; and
d. Borrower does hereby expressly waive, release and relinquish any and all
defenses, setoffs, claims, counterclaims, causes of action or objections, if
any, against Lender.
Conditions Precedent. The effectiveness of this Agreement is subject to the
following conditions precedent:
e. Delivery of Documents. Borrower shall have delivered to Lender, all in form
and substance acceptable to Lender in its sole discretion, (i) executed
counterpart originals of this Agreement, (ii) an Acknowledgment and Consent of
Guarantor, in form and substance satisfactory to Lender, and (iii) such other
documentation as Lender may reasonably require in connection herewith; and
f. Accuracy of Representations and Warranties. All of the representations and
warranties made or deemed to be made in this Agreement and under the Loan
Documents shall be true and correct as of the date of this Agreement, except
such representations and warranties which, by their terms, are applicable to a
prior specific date or period; and
g. Expenses. Borrower shall have paid to Lender the costs and expenses referred
to in
Section 5 hereof.
Effect of this Agreement. As expressly amended hereby, the Loan
Agreement shall be and remain in full force and effect as originally
written, and shall constitute the legal, valid, binding and enforceable
obligations of Borrower to Lender.
Expenses. Borrower agrees to pay on demand all reasonable costs and
expenses of Lender in connection with the preparation, execution,
delivery and enforcement of this Agreement and all other documents and
any other transactions contemplated hereby, including, without
limitation, the reasonable fees and out-of-pocket expenses of legal
counsel to Lender. Borrower authorizes Lender, as Agent, to charge the
foregoing expenses to the Borrower's loan account by increasing the
principal amount of the Revolving Credit Loans by the amount of such
expenses owed by Borrower in connection herewith.
Miscellaneous. Borrower agrees to take such further action as Lender
shall reasonably request in connection herewith to evidence the
amendments herein contained to the Loan Agreement. This Agreement may
be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which, when so executed and
delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same
instrument. This Agreement shall be binding upon and inure to the
benefit of the successors and permitted assigns of the parties hereto.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Georgia.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
IN WITNESS WHEREOF, Borrower and Lender have caused this
Agreement to be duly executed as of the date first above written.
BUSINESS TELECOM, INC.
By:____________________________________
Name:
Title:
[SIGNATURES CONTINUED ON NEXT PAGE]
GENERAL ELECTRIC CAPITAL
CORPORATION, AS AGENT AND LENDER
By:____________________________________
Xxxxxx X. Xxxxx
Senior Vice President as duly authorized
ACKNOWLEDGMENT AND AGREEMENT
The undersigned hereby acknowledges and agrees to the foregoing
Third Amendment to Second Amended and Restated Loan Agreement.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands
and seals this ___ day of July, 1999.
BTI TELECOM CORP.
By:_________________________________
Its:________________________________
ACKNOWLEDGMENT AND AGREEMENT
The undersigned hereby acknowledges that the foregoing Third
Amendment to Second Amended and Restated Loan Agreement shall not
affect the enforceability or validity of any Loan Document executed by
the undersigned.
________________________________(Seal)
Xxxxx X. Xxxxxx
